Amato v. City of Richmond
| Decision Date | 15 December 1994 |
| Docket Number | Civ. A. No. 3:94cv193. |
| Citation | 875 F. Supp. 1124 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Anthony M. AMATO and A. Michael Scott, Sr., Plaintiffs, v. CITY OF RICHMOND, W.R. Shuman, Detective, Individually and as a police officer for the City of Richmond, Robert Hosick, Detective Sergeant, Individually and as a police officer for the City of Richmond, Teresa P. Gooch, Captain, Individually and as a police officer for the City of Richmond, Laurel Miller, Major, Individually and as a police officer for the City of Richmond, Philip Mangano, Detective Sergeant, Individually and as a police officer for the City of Richmond, Marty M. Tapscott, Chief, Individually and as police chief for the City of Richmond, Defendants. |
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Kenneth F. Hardt, Michael J. Kelly, Hardt & Kelly, P.C., Richmond, VA, for plaintiffs.
William J. Hoppe, City of Richmond, Sr. Asst. City Atty., William G. Broaddus, Kenneth D. Crowder, Scott S. Oostdyk, McGuire, Woods, Battle & Boothe, Richmond, VA, for City of Richmond, Robert Hosick, Teresa P. Gooch, Laurel Miller, Philip Mangano and Marty M. Tapscott.
Michael Huyoung, Sarah Jane Chittom, Shuford, Rubin & Gibney, William J. Hoppe, City of Richmond, Sr. Asst. City Atty., William G. Broaddus, Kenneth D. Crowder, Scott S. Oostdyk, McGuire, Woods, Battle & Boothe, Richmond, VA, for W.R. Shuman.
Anthony M. Amato, a professional informant, and A. Michael Scott, a police officer employed by the Richmond Police Department, each instituted actions against the City, its Chief of Police and several police officers. The Chief of Police and the officers are named in their individual and official capacities. The actions were consolidated for discovery and trial because they involve some common issues of fact and law.
In Count I of their respective complaints, Scott and Amato seek recovery, under 42 U.S.C. § 1983, against Major Miller, Captain Gooch, and Detective Sergeants Hosick and Mangano for alleged violations of the Fourth Amendment. These claims arise out of an allegedly nonconsensual entry into the residence which Scott and Amato shared. The stated purpose of the entry was to arrest Amato pursuant to a warrant on a misdemeanor trespass charge. Amato also claims that certain of his property was seized during this search and he seeks damages on account of the allegedly unlawful seizure of that property as well as the allegedly unlawful search.
Count II of Scott's complaint and Count III of Amato's complaint assert precisely the same claims against the same four defendants as asserted in Count I, except that these are asserted as violations of state law, Va.Code Ann. § 19.2-59.
Count II of Amato's complaint asserts a claim under 42 U.S.C. § 1983 for violation of the Fourth Amendment as the consequence of his voluntary surrender to arrest on charges of trespass and extortion. Amato names Miller, Gooch, Hosick and Shuman as defendants in Count II.1
Count III of Scott's complaint and Count IV of Amato's complaint assert state tort claims for intentional infliction of emotional distress. Miller, Gooch, Hosick, Shuman, Chief of Police Tapscott and the City are named as defendants in these counts.
Following full discovery, all defendants moved for summary judgment on all claims. The parties have briefed and argued their positions.
The facts that spawned these actions are largely in dispute. For purposes of summary judgment, plaintiffs are entitled to have the factual disputes resolved in their favor and to the benefit of the inferences which permissibly may be drawn from the facts. Factual recitations in this opinion are faithful to this charge, but the record reflects that the defendants vigorously deny most of the factual assertions on which the plaintiffs base their claims.
Each claim generally is predicated on a discrete set of facts and the facts will be set forth in detail in the discussion of the claims to which they are most pertinent. However, those discussions and the particularized facts are best understood if viewed against the general background which follows.
Amato and Scott met several years ago when Amato was working as an undercover operative for the Federal Bureau of Investigation in its investigation respecting gambling and narcotics in the Richmond area. Scott served as a member of the federal-state task force which conducted those investigations. When the investigations were concluded in 1988, Amato moved away from Richmond and continued his employment as an undercover operative for various federal agencies. In December 1991, Amato, who was between assignments, returned to Richmond and renewed his association with Scott. Shortly thereafter, Amato and Scott entered into an agreement pursuant to which Amato rented a bedroom in, and access to the common areas of, Scott's residence in Chesterfield County.2
For some time, a partnership in which Scott was a general partner owned a building in Richmond which in 1991 was leased to Kenneth Acola, who operated Acola's Restaurant on the premises. In January 1992, Acola was delinquent in the rental payments due under the lease and Scott asked Amato to assist the partnership's lawyer, W. Todd Benson, in collecting the delinquent rent and securing possession of the premises. At the time, Amato was using the alias "Dan Salerno" and his true identity was not widely known.
On January 21, 1992, Amato and Fred Bilter, a retired Richmond firefighter whose help Scott enlisted, went to Acola's Restaurant to serve Acola with an eviction letter authored by Benson and to change the locks (the "Lock Changing Incident"). They served the letter and Amato changed the locks. Acola "became upset and called the police." Several police officers arrived, led by Gordon Overstreet, who instructed Acola to calm down and directed Amato to replace the locks. When this was accomplished, Overstreet reportedly asked Acola either if he had been threatened or whether everything was satisfactory, or both. Acola reportedly responded that he had not been threatened or that he was satisfied, or both. However, Acola expressed concern that the police would favor their follow officer, Scott, in any ensuing disputes or proceedings respecting possession of, or access to, the premises.
In March 1992, Scott became apprehensive that Acola might carry out a previous threat to damage the leased premises and again enlisted Amato to help Benson attend to the matter. In furtherance of that assignment, on March 22, 1992, Amato and Benson, having first requested the Richmond Police Department to have an officer meet them at Acola's Restaurant, visited the premises to determine whether Acola was fulfilling the threat (the "Forced Entry Incident"). When Officer Timothy Arthur met Amato and Benson at the restaurant, they discovered that the locks had been changed. Amato forced open an upstairs door. All three men entered the premises and discovered that the premises had been damaged. Using wood taken from elsewhere on the premises, Amato secured the door through which he had forcibly entered.
Acola subsequently filed a complaint against Amato and Benson for burglary and breaking and entering. He also filed with the Richmond Police Department a complaint alleging that Scott had improperly used his police powers.
The complaint against Scott was referred for investigation to the Internal Affairs Department. Detective Charles R. Sipple headed the Internal Affairs investigation of Scott.
Investigation of the burglary and breaking and entering complaint originally was assigned to two officers in Scott's unit. However, Miller became concerned that this could create the appearance of departmental favoritism towards Scott which, because of Acola's complaint against Scott, Miller wanted to avoid. Accordingly, Miller directed Gooch to reassign the investigation of the Forced Entry Incident to an officer who was not in Scott's unit. Gooch assigned the job to Hosick on March 31, 1992. The details of Hosick's investigation are described more particularly in section III below. So too are the circumstances under which Acola obtained on April 10, 1992 a warrant for the arrest of Amato on a charge of trespass as a result of the Forced Entry Incident on March 22, 1992.
On April 16, 1992, Scott and other officers were detailed by Miller to serve the arrest warrant on Amato at the residence occupied jointly by Amato and Scott. Under circumstances set forth in section I below, the officers entered the residence to arrest Amato.
On April 22, 1992 at approximately 3:15 a.m., Acola's Restaurant was destroyed by a fire set by an arsonist. The investigation of that offense was assigned to Detective Shuman, the fire investigation unit officer on duty when the fire occurred. During that investigation, Shuman reviewed the events that had taken place at the restaurant in January and March 1992 and arrived at the conclusion that Amato had threatened Acola. Shuman communicated this information to William J. Parcell, III, Assistant Commonwealth's Attorney for the City who, through testimony by Shuman, presented a charge of extortion against Amato to the grand jury which, on July 1, 1992, returned an indictment against Amato.
On August 6, 1992, Amato surrendered to arrest on both the extortion charge and the trespass charge. He was detained for approximately ten hours and then released on a $10,000 bond on the extortion charge. The extortion charge was subsequently dismissed upon entry of a nolle prosequi.
The foregoing events and Scott's reassignment from the detective division to street patrol in April, 1992 lie at the core of the claims asserted by Amato and Scott. The alleged motivations for these acts also are central to the plaintiffs' theory of their case. Here too, the charges are highly disputed. In sum, it is the plaintiffs' theory that the search and the arrest of Amato were...
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