Estate of Smith v. Marasco
| Decision Date | 29 January 2003 |
| Docket Number | No. 02-1437.,02-1437. |
| Citation | 318 F.3d 497 |
| Parties | ESTATE OF Robert Cecil SMITH; Pauline Smith, Individually and as Administrator of the Estate of Robert C. Smith; Dana Smith; Wanda Smith v. Trooper James MARASCO; Trooper Nicholas Scianna; Trooper Thomas Weaver; Trooper Andrew L. Wenger; Captain Michael J. Marcantino; Lieutenant Berry Reed; Lieutenant Edwards; Lieutenant Schaeffer; Lieutenant Snyder; Robert Johnson; Dante Orlandi, Corporal; Thomas Gregory Hall, Corporal; Tedescung L. Bandy, Corporal; Barry L. Brinser, Trooper; Gregory Broaddus, Trooper; Carbonell, Trooper; Colon, Corporal; John R. Comerer, Jr., Corporal; Glenn C. Doman, Corporal; John Edwards, Trooper; Wayne S. Elser, Corporal; Frank L. Fetterolf, Lieutenant; David Frisk, Corporal; Gillison, Corporal; James A. Hamill, Corporal; Martin L. Henry, III, Corporal; Joseph Kalis, Trooper; A.J. Krawczel, Corporal; William J. McClure, Trooper; Thomas McDaniel, Sergeant; Shawn Mell, Trooper; Arthur Moss, Jr., Trooper; William Moyer, Trooper; ED Murphy, Trooper; Kevin Reichert, Corporal; Charles Rodgers, Sergeant; Mervin Rodriquez, Corporal; Thomas Rodriquez, Trooper; Keith A. Stone, Trooper; Gregory Stumpo, Trooper; Dominic G. Visconti, Trooper; William White, Corporal; Joseph Wilson, Corporal; Gregory Wirth, Trooper; Michael Witmer, Corporal; Kenneth Yoder, Corporal; John Doe # 1-25, Whose Names are Currently Unknown Estate of Robert Cecil Smith; Pauline Smith; Dana Smith; Wanda Smith, Appellants. |
| Court | U.S. Court of Appeals — Third Circuit |
Jordan B. Yeager (argued), Boockvar & Yeager, Bethlehem, PA, for Appellants.
D. Michael Fisher, Attorney General, J. Bart DeLone (argued), Senior Deputy Attorney General, Calvin R. Koons, Senior Deputy Attorney General, John G. Knorr, III, Chief Deputy Attorney General, Chief, Appellate Litigation Section, Office of Attorney General, Appellate Litigation Section, Harrisburg, PA, for Appellees.
Before McKEE and GREENBERG, Circuit Judges, and LIFLAND, District Judge.*
This matter comes on before this court on an appeal by the plaintiffs, the Estate of Robert Smith, Pauline Smith, Dana Smith, and Wanda Smith, to whom we refer collectively as the "Smiths," from the district court's order entered January 14, 2002, granting summary judgment in favor of the defendants, 46 specifically named and 25 John Doe employees of the Pennsylvania State Police. The Smiths also appeal from the district court's orders of September 17, 2001, October 12, 2001, November 15, 2001, and November 30, 2001, to the extent that they denied their requests to take additional depositions and to extend the time for discovery. For the reasons stated herein, we will affirm in part and reverse in part the district court's order granting summary judgment and will affirm its discovery orders without prejudice to the Smiths seeking to reopen discovery on the remand we are ordering.
Decedent Robert Smith, a former police officer and Vietnam veteran, suffered from various medical problems, including Post-Traumatic Stress Disorder ("PTSD") and coronary heart disease. Several members of the state police were familiar with Smith, largely as a result of ongoing problems between Smith and his neighbor, Michael Shafer. Prior to the events giving rise to this litigation members of Troop L of the state police had investigated a number of complaints Shafer and Smith had lodged against each other. Smith also had complained numerous times about the conduct of Troop L members, and the state police at one point had charged Smith with making false reports to law enforcement and harassment. The Smiths allege that through these contacts the state police came to know that Smith was in fragile physical and mental health, had a major heart condition, had undergone knee replacement surgery, suffered from hypertension, recently had been hospitalized, and was required to be free from stressful situations and to take medication. Several troopers stated in their depositions, and police event logs confirm, that certain troopers were aware that Smith suffered from PTSD and experienced flashbacks.
The events directly resulting in this litigation started on July 10, 1999, when, in response to a complaint by Shafer, Troopers James Marasco and Nicholas Scianna of Troop L went to Smith's residence at approximately 10:30 p.m.1 Marasco responded to Shafer's complaint even though Smith's residence was outside his assigned geographic patrol area. The troopers did not have an arrest warrant or a search warrant. In an attempt to contact Smith, they repeatedly knocked on his door, but he did not respond. They then called the barracks and spoke to Corporal Mervin Rodriguez ("M. Rodriguez") who advised them to have the residence telephoned and to leave if there was no answer. The call was made but was not answered. Marasco and Scianna, however, did not leave, but instead went to the back of the house searching for Smith.2
Scianna testified that while in the back of the house he observed a small red light in a window and thought that Smith might be videotaping the officers. Marasco testified that he saw the light on Scianna's body, and written reports state that the troopers believed that Smith was directing a laser-sighted firearm at Scianna.3 The Smiths dispute this account, noting that the troopers never saw a firearm. Moreover, the Smiths point to contradictory statements concerning where on Scianna's body they allegedly saw the red light, the location of the officers when they first saw the light, and whether the light was emanating from Smith's or Shafer's home. In any event, the officers retreated and called for back-up assistance. M. Rodriguez and Trooper Thomas Rodriguez ("T. Rodriguez") responded and unsuccessfully attempted to communicate with Smith over a police vehicle's public address system and by telephone. M. Rodriguez then called state police Lieutenant Fetterolf to request assistance from the state police's Special Emergency Response Team ("SERT"). Fetterolf agreed and contacted Corporal Hall of SERT, who, with Captain Torkar, activated SERT.
Fetterolf testified that at the time he agreed to activate SERT, he considered the scenario to be a "barricaded gunman" situation. He also testified, however, that the circumstances did not lead him to believe that a gun might be involved, or even that someone was barricaded in Smith's home. Hall testified that SERT should not have been activated unless officers had prepared or were in the process of preparing a warrant, or if there were exigent circumstances. Nevertheless the state police activated SERT before they made the decision to obtain a warrant even though, in Hall's opinion, exigent circumstances did not exist.
Before SERT arrived, several officers began to establish a perimeter around Smith's residence. M. Rodriguez testified that at some point he and T. Rodriguez saw an individual they believed to be Smith walk from the residence to a shed in the backyard. The individual did not respond to their calls and they did not identify him positively as Smith.
SERT responded with a negotiation team and a tactical team. It appears that at least 30 SERT members wearing riot gear and camouflage and armed with various weapons were present. Sharpshooters targeted firearms at the house, a helicopter hovered overhead, and the state police would not allow anyone, even family members, to come or go to the premises without police permission. SERT unsuccessfully attempted to contact Smith by telephone and over the PA system. Smith, however, did contact his daughter Dana on the telephone, telling her that there were state troopers outside his house. Dana later advised the state police Personal Communications Officer ("PCO") of this call.
In the early morning of July 11, 1999, Trooper Weaver, the on-duty criminal investigator, filed criminal charges of aggravated assault, simple assault, and recklessly endangering a person against Smith and obtained a warrant for his arrest. Moreover, Trooper Andrew Wenger obtained a search warrant for Smith's premises. According to the Smiths, SERT rejected offers from family, friends, and neighbors to attempt to communicate with Smith and prevented Chris Zwicky, a neighbor familiar with the woods near Smith's house, from searching for Smith. They also chose not to record a message from anyone close to Smith, despite having technology to do so, and decided not to utilize Dana Smith as a mediator, despite her having received a call from Smith asking her to do so. Finally, SERT rejected the use of a psychologist.
SERT then entered and cleared the house and the shed in the backyard using rocks, tear gas, and "flash bang" distraction devices. Nevertheless the police did not find anyone in either structure. They did, however, recover eight weapons including handguns with scopes, though none had a laser sight. The officers also found a video cassette and a camcorder, which they seized after obtaining a warrant, as well as Smith's wallet, identification, cash, credit cards, keys, false teeth and medication he was required to take by reason of recently having had triple bypass surgery. After learning that Smith had a hunting hideout in the woods, SERT searched the wooded area adjacent to Smith's residence with Zwicky's aid.4 Having failed to locate Smith, the officers called off the search and, around midday on July 11, 1999, left the scene.
On July 12, 1999, the complaint against Smith was withdrawn. That same day, Smith's brother filed a missing persons report because Smith had not returned home. The parties dispute the nature of the search effort over the next days. The defendants presented records indicating that Marasco and Corporal Elser conducted a foot search for Smith on July 14, 1999; that Corporal Schell conducted an aerial...
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