Hall v. Lopez, Civ. A. No. 92-F-2433.

• Decision Date: 03 May 1993
• Docket Number: Civ. A. No. 92-F-2433.
• Parties: Joanna HALL, Plaintiff, v. Ron LOPEZ, in his individual capacity, John Borini, in his individual capacity, Salvatore Fiorillo, in his individual capacity, Ron Gibson, in his individual capacity, Dan Shull, in his individual capacity, and Lorne Kramer, in his official capacity as Police Chief for the City of Colorado Springs, Defendants.
• Court: U.S. Court of Appeals — Seventh Circuit

823 F. Supp. 857

Joanna HALL, Plaintiff, v. Ron LOPEZ, in his individual capacity, John Borini, in his individual capacity, Salvatore Fiorillo, in his individual capacity, Ron Gibson, in his individual capacity, Dan Shull, in his individual capacity, and Lorne Kramer, in his official capacity as Police Chief for the City of Colorado Springs, Defendants.

Civ. A. No. 92-F-2433.

United States District Court, D. Colorado.

May 3, 1993.

Dennis W. Hartley, Dennis W. Hartley, P.C. and Craig M. Cornish, Cornish & Dell'Olio, Colorado Springs, CO, for plaintiff.

James G. Colvin II, City Atty. and Thomas J. Marrese, Sr. Litigation Atty., City of Colorado Springs, Colorado Springs, CO, for defendants.

ORDER REGARDING MOTION FOR SUMMARY JUDGMENT

SHERMAN G. FINESILVER, Chief Judge.

This is a case involving allegations of excessive use of police force and violations of Plaintiffs' constitutional rights. This matter comes before the Court on Defendants' motion to dismiss or for summary judgment. Both parties submitted voluminous materials outside their pleadings; pursuant to Fed. R.Civ.P. 12(c), the motion will be treated as one for summary judgment. Jurisdiction is based on 28 U.S.C.A. § 1331. The litigants have fully briefed the matter. For the reasons stated below, the motion is GRANTED IN PART and DENIED IN PART.

I. Background

On December 20, 1991, at 8:30 p.m., Defendant Detective Fiorillo, an undercover officer, arranged to purchase one pound of marijuana from Clark Whitney.¹ Plaintiff, Joanna Hall, alleges Whitney got the marijuana from one David Glab; Defendants assert Whitney (whom Defendants merely refer to as "an individual") had obtained the marijuana from a man named Dennis Murphy. Detective Fiorillo was apparently told by a fellow detective that the marijuana originated from 2025 Salt Drive at about 8:00 p.m. Mr. Murphy, along with Hall, resided at 2025 Salt Drive, Colorado Springs, Colorado.

Later that night, Detective Fiorillo, who had six years of experience as a police officer and two years in the Vice/Narcotics Unit, applied for and obtained a no-knock search warrant for 2025 Salt Drive. Detective Fiorillo apparently prepared an application for a no-knock warrant for Mr. Glab's residence, but did not complete the application process. In the affidavit, Detective Fiorillo stated that, based on his experience with drug dealers, he knew them to protect themselves and their narcotics from police and rival drug dealers by arming themselves with dangerous weapons, including revolvers, rifles, shotguns, and knives. The detective stated Mr. Murphy was known to have six pounds of marijuana in his possession, but that it could be rapidly disposed of. In the interests of officer safety and preserving evidence, Detective Murphy therefore requested a no-knock search warrant.

The warrant was later approved by Defendant Captain Dan Shull. At 11:30 p.m. El Paso County District Court Judge David Parrish reviewed the application and the officer's affidavit and issued the no-knock search warrant. Shortly after midnight, members of the Tactical Enforcement Unit (TEU), including Officers Gibson, Lopez, and Borini, broke down Hall's door with a 35-pound, one-man battering ram and entered her residence.

Hall and Mr. Murphy were sleeping at the time. Due to her fear of a violent ex-boyfriend, Hall kept a loaded 9mm pistol on the headboard of her bed. When she heard the commotion of the TEU's entrance, she thought her ex-boyfriend had broken in. She sat up in bed and was shot in the back with a 9mm bullet which entered the right side of her back and exited the right side of her chest. She stated in an affidavit that after she was shot, she became afraid her ex-boyfriend would go to her son's bedroom; she picked up her own gun from the headboard in order to arm herself. When she heard the intruders identify themselves as police, she dropped her weapon. Hall does not allege that Chief Kramer was involved in either applying for or executing the search warrant.

The search of Hall and Murphy's home turned up no marijuana, but outside the house, in a freezer within Hall and Murphy's detached garage, police found 7,318 grams of marijuana and packaging material.

Hall brought this action under 42 U.S.C.A. § 1983 (West Supp.1992) alleging a violation of her Fourth and Fourteenth Amendment rights under the U.S. Constitution and Article II, Section 12 (No Imprisonment for Debt) and 25 (Due Process of Law) of the Colorado Constitution. Specifically, Hall lists four causes of action: (1) unlawful entry by all Defendants in violation of the Fourth and Fourteenth Amendments of the U.S. Constitution as well as Article II, §§ 12 and 25 of the Colorado Constitution; (2) unreasonable and excessive use of force by Officers Lopez and Borini in violation of the same constitutional provisions; (3) deliberate indifference on the part of the City, Chief of Police Kramer, and the police department; and (4) three state claims of false imprisonment, battery, and outrageous conduct against all Defendants.

All Defendants moved for summary judgment on Plaintiffs' first cause of action, Kramer moved for summary judgment on Plaintiffs' third cause of action, and Kramer, Shull, Fiorillo, and Gibson moved for summary judgment on Plaintiffs' fourth cause of action.

II. Summary Judgment Standard

Granting summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Ash Creek Mining Co. v. Lujan, 934 F.2d 240, 242 (10th Cir.1991); Metz v. United States, 933 F.2d 802, 804 (10th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 416, 116 L.Ed.2d 436 (1991); Continental Casualty Co. v. P.D.C., Inc., 931 F.2d 1429, 1430 (10th Cir.1991). A genuine issue of material fact exists only where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Merrick v. Northern Natural Gas Co., 911 F.2d 426, 429 (10th Cir.1990). Only disputes over facts that might affect the outcome of the case will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Allen v. Dayco Prods., Inc., 758 F.Supp. 630, 631 (D.Colo.1990).

In reviewing a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion. Newport Steel Corp. v. Thompson, 757 F.Supp. 1152, 1155 (D.Colo.1990). All doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir.1991); Mountain Fuel Supply v. Reliance Ins. Co., 933 F.2d 882, 889 (10th Cir.1991).

In a motion for summary judgment, the moving party's initial burden is slight. In Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986), the Supreme Court held that the language of rule 56(c) does not require the moving party to show an absence of issues of material fact in order to be awarded summary judgment. Rule 56 does not require the movant to negate the opponent's claim. Id. at 323, 106 S.Ct. at 2552. The moving party must allege an absence of evidence to support the opposing party's case and identify supporting portions of the record. Id.

Once the movant has made an initial showing, the burden of going forward shifts to the opposing party. The nonmovant must establish that there are issues of material fact to be determined. Id. at 322-23, 106 S.Ct. at 2552-53. The nonmovant must go beyond the pleadings and designate specific facts showing genuine issues for trial on every element challenged by the motion. Tillett v. Lujan, 931 F.2d 636, 639 (10th Cir.1991). Conclusory allegations will not establish issues of fact sufficient to defeat summary judgment. McVay v. Western Plains Serv. Corp., 823 F.2d 1395, 1398 (10th Cir.1987).

In reviewing the evidence submitted, the court should grant summary judgment only when there is clearly no issue of material fact remaining. In Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11, the Court held that summary judgment should be granted if the pretrial evidence is merely colorable or is not significantly probative. In Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the Court held that summary judgment is appropriate when the trial judge can conclude that no reasonable trier of fact could find for the nonmovant on the basis of evidence presented in the motion and the response. Id. at 587, 106 S.Ct. at 1356.

III. Plaintiffs' First Cause of Action: Unlawful Search

A. Governing Law

Defendants have moved for summary judgment on Plaintiffs' first cause of action regarding their illegal search on grounds of both qualified immunity and certain Defendants' lack of participation in the application for and execution of the search warrant. We examine the issues under federal rather than state statutory and constitutional standards. Ker v. California, 374 U.S. 23, 39, 83 S.Ct. 1623, 1632, 10 L.Ed.2d 726 (1963); United States v. Mitchell, 783 F.2d 971, 973-74 (10th Cir.), cert. denied, 479 U.S. 860, 107 S.Ct. 208, 93 L.Ed.2d 138 (1986).

There is some question whether state officers using a state warrant to investigate violations of state crimes should be judged by Fourth Amendment standards or the "knock and announce" requirement embodied in federal statute, 18 U.S.C. § 3109. The courts disagree about whether there is even a difference. Some courts have appeared to find that section 3109 and the Fourth Amendment are co-extensive, noting "the rule incorporated by Section 3109 is merely expressive of the common law rule," King v. Marmon, 793 F.Supp. 1030, 1033 (D.Kan.1992); see also Simons v. Montgomery County Police Officers, 762 F.2d 30, 33 (4th Cir.1985), or is "grounded in the Fourth Amendment." United States v. Ruminer, 786 F.2d 381, 383 (10th Cir.1986). Others have...