Couden v. Duffey

• Decision Date: 02 December 2011
• Docket Number: Civil Action No. 03–369–MPT.
• Court: U.S. District Court — District of Delaware
• Parties: Pamela A. COUDEN, et al., Plaintiffs, v. Scott DUFFEY, et al.

826 F.Supp.2d 711

Pamela A. COUDEN, et al., Plaintiffs,

v.Scott DUFFEY, et al.

Civil Action No. 03–369–MPT.

United States District Court, D. Delaware.

Dec. 2, 2011.

William D. Fletcher, Jr., Noel E. Primos, Schmittinger & Rodriguez, P.A., Dover, DE, for Plaintiffs.

Lauren Mary McEvoy, Rudolph Contreras, David C. Weiss, U.S. Attorney's Office, Michele Allen, Richard R. Wier, Jr., Wier & Allen, PA, Robert C. McDonald, Silverman McDonald & Friedman, Rosamaria Tassone, City of Wilmington Law

Department, Wilmington, DE, Judith A. Hildick, New Castle County Law Dept., New Castle, DE, Ronald Stoner, Ronald Stoner, P.A., Newark, DE, for Defendants.

MEMORANDUM ORDER

MARY PAT THYNGE, United States Magistrate Judge.I. INTRODUCTION

Plaintiff Paula Couden (“Couden”) and six of her children filed a civil rights and tort action against defendants Scott Duffey (“Agent Duffey”), James C. Armstrong (“Officer Armstrong”), Jay Freebery (“Officer Freebery”), Liam Sullivan (“Officer Sullivan”), New Castle County, the New Castle County Department of Police, the City of Wilmington, the City of Wilmington Department of Police, two unknown agents of the Federal Bureau of Investigation, and the United States of America.¹ The suit arose from a series of nighttime interactions with plaintiffs and the individual defendants at the Couden home in connection with those defendants' surveillance of a different house near the Couden residence. Among plaintiffs' claims was an allegation that Officer Armstrong's conduct that night constituted an unconstitutional seizure of Couden and four of her children under the Fourth Amendment of the United States Constitution while they were in their vehicle parked in the driveway of their home. Plaintiffs also brought a claim against Agent Duffey as a federal official under the United States Supreme Court's holding in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,² alleging violation of their Fourth Amendment rights for which they seek attorneys fees and costs if they prevail on that claim.

On February, 18, 2004, this court granted summary judgment to all defendants on all of the asserted claims.³ On May 1, 2006, a divided panel of the United States Court of Appeals for the Third Circuit reversed in part and affirmed in part the February 18, 2004, 305 F.Supp.2d 379 order, and remanded the action for further proceedings.⁴ The referenced Fourth Amendment claims against Officer Armstrong and Agent Duffey were two of the claims the Third Circuit determined were erroneously granted summary judgment. ⁵

The case is scheduled to be tried to a jury beginning on December 5, 2011. A pretrial conference was held on November 18, 2011. At the pretrial conference, defendants again raised the issue of whether Officer Armstrong's actions constituted a seizure under Supreme Court and Third Circuit precedent. The issue of whether plaintiffs could recover attorneys' fees and costs related to their Bivens claim against Agent Duffey, should they prevail on that claim, was also raised at that conference.

II. BACKGROUND ⁶

On April 12, 2001, members of the Delaware Joint Violent Crime Fugitive Task Force set up surveillance near 7 Sanford Drive in Newark, Delaware, based on a tip that a fugitive wanted by the New Castle County Police Department for drug and weapons-related charges might be staying at that address. The Task Force was made up of both state and federal officers, and the members at the scene were ... Scott Duff[e]y of the Federal Bureau of Investigation (FBI), James Armstrong and Jay Freebery of the New Castle County Police Department, and Liam Sullivan of the Wilmington Police Department. The members of the Task Force were parked in two unmarked vehicles and wore plain clothes.

At about 8:30 p.m., Pamela Couden drove up to her home at 3 Sanford Drive, two houses away from 7 Sanford Drive, with five of her children—... Micah, age 5, Luke, 7, Jordan, 9, Nicholas, 11, and Adam, 14. Couden's daughter, 17 year-old Tiffany, was inside the residence. Couden parked on the street and kept her lights on and the engine running while Adam exited the car. According to Couden, she was waiting for Adam to put his skateboard in the garage and summon his sister, and the family then planned to go out to dinner. Adam walked into the garage, where he put down his skateboard and looked through a window from the garage into the house. He saw Tiffany through the window and started to leave the garage. At that time, he saw a man charging towards him with a gun. Frightened, he slammed the garage door shut, remaining inside.

Meanwhile, Pamela Couden pulled her car into the driveway, put her high beams on, and blew the horn to summon Adam. She then saw an unknown man—later determined to be Officer Armstrong—walking towards her with a gun. When he reached the car he pointed the gun at Pamela Couden and pulled the door handle without displaying a badge or identifying himself in any way. Not realizing that the man was an officer, Couden tried to escape. She pressed the gas pedal, swerved to avoid the garage, and swerved again to avoid a tree. She then saw a second man—later determined to be Officer Freebery—running towards the car pointing a gun at her and holding a flashlight above his head. As Couden drove past Officer Freebery, he threw the flashlight at a window of the car, shattering the glass. The children screamed from the back seat of the car, and Couden believed that one of them had been shot. Couden continued driving to a neighbor's house and drove over the curb, breaking the car's steering column. She ran into the neighbor's house and called 9–1–1.⁷

The Third Circuit stated that “[c]onsidering the facts in the light most favorable to the plaintiffs, Armstrong's conduct gave rise to an unconstitutional seizure under the Fourth Amendment when he approached the Couden vehicle with gun drawn.” ⁸

III. DISCUSSION1. Plaintiffs' Fourth Amendment Claim Against Officer Armstrong

In United States v. Smith,⁹ the Third Circuit explained the requirements for finding unreasonable searches and seizures:

The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amend. IV. “The Fourth Amendment's requirement that searches and seizures be founded upon an objective justification, governs all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” United States v. Mendenhall, 446 U.S. 544, 551, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (internal quotation marks omitted). But not every interaction between a police officer and a citizen is protected by the Fourth Amendment. An encounter “will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.... ‘ Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’ ” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting Terry [v. Ohio], 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889); see also California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). “Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards.” Mendenhall, 446 U.S. at 553, 100 S.Ct. 1870, 64 L.Ed.2d 497. Yet “[l]aw enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.” United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). In fact, “[e]ven when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, [and] ask for identification” without running afoul of the Fourth Amendment's prohibitions. Id. at 201, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242.

Whether an encounter with a police officer constitutes a search and/or seizure under the Fourth Amendment requires consideration of “all the circumstances surrounding the encounter.” Bostick, 501 U.S. at 439, 111 S.Ct. 2382, 115 L.Ed.2d 389. Any inquiry into an alleged seizure must begin by determining when the seizure occurred. See United States v. Torres, 534 F.3d 207, 210 (3d Cir.2008) (“The initial step of a Fourth Amendment suppression analysis requires us to determine the timing of the seizure.”). The timing of the seizure is significant—if the seizure occurred after suspicious behavior such as flight, this factors into our analysis of whether there was reasonable suspicion to justify the seizure. But if the seizure occurred before the flight, as the District Court found here, then the flight “plays no role in the reasonable suspicion analysis.” United States v. Brown, 448 F.3d 239, 245 (3d Cir.2006). As such, any seizure inquiry has two steps: Was there in fact a seizure? If so, was that seizure reasonable?

The Supreme Court provides us with guidance. In Mendenhall, the Court listed several factors indicative of a seizure: “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.” 446 U.S. at 554, 100 S.Ct. 1870, 64 L.Ed.2d 497. In Hodari D., the Court provided further clarification, holding that the Mendenhall test was “a necessary, but not a sufficient condition for seizure—or, more precisely, for seizure effected through a ‘show of authority.’ ” 499 U.S. at 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (emphases omitted). In Hodari D., the Court held that a seizure does not occur when the subject does not yield to a show of authority. 499 U.S. at 626, 111 S.Ct. 1547, 113 L.Ed.2d 690. To be clear, a seizure “requires either physical force ... or, where that is absent, submission to the assertion of...