Burley v. Gagacki

• Decision Date: 06 September 2013
• Docket Number: Nos. 12–1820,13–1098.,s. 12–1820
• Citation: 729 F.3d 610
• Parties: Geraldine BURLEY; Caroline Burley, Plaintiffs–Appellants, v. Jeffery GAGACKI; Wayne County; Earl Doe; Patrick Browne; Shawn Reed; Brian Woloski; Scott Harding, William Hanger, aka “k. Hanger”; Jeffrey Pierog; and Christopher Land, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

729 F.3d 610

Geraldine BURLEY; Caroline Burley, Plaintiffs–Appellants,

v.Jeffery GAGACKI; Wayne County; Earl Doe; Patrick Browne; Shawn Reed; Brian Woloski; Scott Harding, William Hanger, aka “k. Hanger”; Jeffrey Pierog; and Christopher Land, Defendants–Appellees.

Nos. 12–1820, 13–1098.

United States Court of Appeals, Sixth Circuit.

Argued: July 31, 2013.

Decided and Filed: Sept. 6, 2013.

ARGUED:Stanley I. Okoli, Romano Law, P.L.L.C., Southfield, Michigan, for Appellants in 12–1820 and 13–1098. Theresa M. Urbanic, United States Attorney's Office, Detroit, Michigan, for Appellees Gagacki, Browne, Reed, Woloski, and Harding in 12–1820 and 13–1098. Aaron C. Thomas, Wayne County Corporation Counsel, Detroit, Michigan, for Appellee Wayne County. Joseph T. Froehlich, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee Hanger. Raechel M. Badalamenti, Kirk Huth, Lange & Badalamenti, PLC, Clinton Township, Michigan, for Appellee Pierog. John A. Schapka, Macomb County Corporation Counsel, Mount Clemens, Michigan, for Appellee Land. ON BRIEF:Stanley I. Okoli, Romano Law, P.L.L.C., Southfield, Michigan, for Appellants in 12–1820 and 13–1098. Theresa M. Urbanic, United States Attorney's Office, Detroit, Michigan, for Appellees Gagacki, Browne, Reed, Woloski, and Harding in 12–1820 and 13–1098. Aaron C. Thomas, Wayne County Corporation Counsel, Detroit, Michigan, for Appellee Wayne County. Joseph T. Froehlich, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee Hanger. Raechel M. Badalamenti, Kirk Huth, Lange & Badalamenti, PLC, Clinton Township, Michigan, for Appellee Pierog. John A. Schapka, Macomb County Corporation Counsel, Mount Clemens, Michigan, for Appellee Land.

Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

On June 13, 2007, masked law enforcement agents, dressed in black, with guns drawn, broke into a home at 20400 Greeley Street in the City of Detroit. Within the confines of plaintiffs' home, the masked agents allegedly assaulted and terrorized plaintiffs Geraldine and Caroline Burley. When Geraldine Burley asked the intruders to identify themselves, the agents refused, responding instead that they were “Team 11.”

In this action asserting claims of excessive force and violation of the Fourth Amendment, the identities of the masked agents who raided the home and allegedly assaulted plaintiffs became the central focus of the litigation. This task was difficult for plaintiffs because the agents intentionally concealed their identities and the raid was part of a vast multi-law enforcement operation involving Wayne County, and federal, state, and municipal law enforcement agents.

Before trial, the district court granted summary judgment in favor of defendants Wayne County and the state and municipal officers. Thereafter, trial began against the federal agents, only. However, at the close of plaintiffs' proofs on liability, the district court granted judgment as a matter of law in favor of the federal defendants. Later, the district court awarded the federal defendants costs and required plaintiffs to post a supersedeas bond. Plaintiffs now appeal.

Regarding the federal defendants, we hold that judgment as a matter of law was error requiring reversal because genuine issues of material fact exist with respect to their personal involvement in the raid and alleged conduct in violating plaintiffs' constitutional rights. Further, on remand, the district court may consider whether the circumstances of this case, which include an intentional concealment of identity, coupled with an “I wasn't there” defense, warrants shifting the burden of production onto the federal agents to establish their lack of involvement. See generally Dubner v. City & Cnty. of San Francisco, 266 F.3d 959 (9th Cir.2001). We find no error requiring reversal in the district court's other rulings. Accordingly, we AFFIRM in part, REVERSE in part, VACATE the judgment of costs and supersedeas bond order, and REMAND for further proceedings consistent with this opinion.

I.

The search of plaintiffs' home was part of “Operation 8 Mile,” a large-scale, multi-agency effort targeting drug trafficking and other crimes in the area known as the “8 Mile Corridor.” Hundreds of officers from numerous agencies assisted in securing and executing warrants at locations of suspected illegal drug activity. The federal defendants named in plaintiffs' complaint were part of a special task force of the Drug Enforcement Agency (“DEA”) known as DEA Group 6.¹ The state and local defendants named in plaintiffs' complaint were part of a narcotics task force called the County of Macomb Enforcement Team (“COMET”).

According to plaintiffs, they were inside their home located at 20400 Greeley Street in the City of Detroit on June 13, 2007, when they heard a loud boom. When Geraldine Burley came upstairs from the basement, an officer put a gun to her face and said “[g]et on the floor.” She explained that she needed to ease herself to the floor because she had undergone two knee replacements. At that point, another officer appeared, ordered Geraldine to the floor, and shoved her into the table. She hit her head, shoulder, neck, and back against the table as she fell to the ground. Another officer walked on top of her body. When Geraldine's adult daughter, Caroline, heard the loud boom and entered the living room, an officer allegedly put a gun to her face and told her, “[s]top, put your hands up.” The officer threw her against the wall and onto the floor. When he placed his foot on her back, Caroline hollered, “[g]et your feet out [of] my back. I've had back surgeries.” Sometime thereafter, another officer placed his foot on her back, and Caroline again explained that she had undergone back surgeries. Later, all occupants of plaintiffs' home were secured in the living room. According to plaintiffs, the officers were dressed in black clothing with their faces covered except for their eyes, concealing their identities. When Geraldine asked for the officers' names, one of the officers was about to write them down when another officer stopped him and said, “No, just put Team 11.”

In this action, the identities of the raiding and assaulting officers was critical because individual liability requires a showing of personal involvement in the deprivation of a constitutional right. To this end, plaintiffs' attorneys requested, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, disclosure of the identities of the officers involved. Two years later, Wayne County furnished an investigation report prepared by DEA Officer Daniel Krause regarding the raid of plaintiffs' residence at 20400 Greeley. The report indicates that Jeffery Gagacki, Patrick Browne, Shawn Reed, Brian Woloski, Scott Harding, and William Hanger (“federal defendants”), and Christopher Land and Jeffrey Pierog (“state and local defendants”) executed the search warrant at 5:35 p.m. on June 13, 2007. Relying on this information, plaintiffs promptly amended their complaint to add the aforementioned individual defendants.

A second DEA report indicates that Gagacki, Browne, Reed, Woloski, Harding, Perry Dar, and Calvin Higgins executed a search warrant at 20400 Hull, a nearby address, at 5:30 p.m. on the same day. The district court record also includes two Wayne County incident reports signed by Gagacki, one for 20400 Greeley and the other for 20400 Hull, indicating that the searches were executed simultaneously, both beginning at 6:00 p.m. The Wayne County incident reports do not list the officers involved.

Plaintiffs' amended complaint alleged three counts. In Count I, plaintiffs claimed that the state and local defendants used excessive force in executing the search warrant at their home, thereby violating their constitutional rights and entitling them to damages under 42 U.S.C. § 1983. In Count II, also brought under § 1983, plaintiffs alleged that Wayne County had a policy of allowing officers to use excessive force and a policy of withholding officer identities and denying the existence of records to prevent victims from redressing police misconduct, and that these policies either caused or contributed to the violation of their constitutional rights. See generally Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Count III, plaintiffs alleged that the federal defendants violated their rights secured by the Fourth Amendment, resulting in civil liability under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

In the initial stages of discovery, the federal defendants did not affirmatively assert their lack of involvement in the raid. It was only in their depositions, after the limitations period had run, that the federal defendants alleged that they did not participate in the raid of plaintiffs' home but were instead executing a search warrant at 20400 Hull at the time. Gagacki and Reed testified that it would be physically impossible for an officer to have engaged in the execution of both search warrants simultaneously or, at most, five minutes apart. Gagacki admitted that he entered plaintiffs' residence, but he claims to have done so only after the premises were secured in order to prepare the search warrant return; at that point, plaintiffs were already seated in the living room. Responding to the federal defendants' belated “I wasn't there” defense, plaintiffs filed a motion seeking the sanction of default. Plaintiffs complained that the federal defendants waited until their depositions to deny participation in the execution of the search warrant at their residence and to identify other members of DEA Group 6 who may have been present. The district court denied the motion because it found insufficient proof of any discovery violation—rather, “[t]he only thing we have is the plaintiffs' general dissatisfaction...