Piechowicz v. US

Decision Date29 March 1988
Docket NumberCiv. No. K-86-802.
PartiesCheryl Ann PIECHOWICZ, Individually and as Personal Representative of the Estate of David Scott Piechowicz, Sherrie Marie Waldrup, a Minor by Cheryl Ann Piechowicz, her Mother and Next Friend, John I. Kennedy, Jr., Individually and as Personal Representative of the Estate of Susan C. Kennedy, Melva Kennedy, "To the use of Walter Piechowicz", "to the use of Florence Piechowicz", "to the use of Reliance Insurance Co." v. UNITED STATES of America, James Savage, individually and as Assistant United States Attorney for the District of Maryland, John Ryan, individually and as an Agent of the Drug Enforcement Administration of the United States.
CourtU.S. District Court — District of Maryland

Stephen N. Goldberg and George R. Hoffman, Baltimore, Md., for plaintiffs other than Use-Plaintiff Reliance Ins. Co.

Donald L. Allewalt, Baltimore, Md., for Use-Plaintiff Reliance Ins. Co.

Richard K. Willard, Asst. Atty. Gen., Washington, D.C., John J. Farley, III, Director, Gordon W. Daiger, Sr. Trial Counsel, and Burke M. Wong, Trial Atty., Torts Branch, U.S. Dept. of Justice, Washington, D.C., Breckinridge L. Willcox, U.S. Atty., and Juliet A. Eurich, Asst. U.S. Atty., Baltimore, Md., for defendants.

FRANK A. KAUFMAN, Senior District Judge:

On April 28, 1983, David Scott Piechowicz and Susan C. Kennedy were murdered at the Warren House Hotel in Baltimore County, Maryland. In this case, their survivors bring suit against the United States of America, Assistant United States Attorney James C. Savage (Savage), and Special Agent John Ryan (Ryan) of the Drug Enforcement Administration (DEA). Defendants have moved to dismiss the plaintiffs' claims against them on various grounds.1

I. Facts

Anthony Grandison was charged with violations of federal drug and firearms laws in an indictment filed in this Court on November 17, 1982.2 Assistant United States Attorney Savage and Special Agent Ryan were in charge of the prosecution of the case. David Scott Piechowicz (David) and Cheryl Ann Piechowicz (Cheryl), husband and wife (collectively, the Piechowiczes), were subpoenaed by the government to testify in that case against Grandison during a pretrial hearing on March 14, 1983 as well as at the trial on May 3, 1983. Plaintiffs allege that both David and Cheryl were threatened by an agent of Grandison on March 14, 1983, before the hearing on that date; that David and Cheryl immediately reported those threats to Savage and Ryan; and that David and Cheryl were told by Savage and Ryan not to worry about the threats and to testify truthfully and honestly when called to testify at the March 14, 1983 hearing.

During the hearing, both David and Cheryl testified against Grandison, disclosing during their testimony that they were both then working at the Warren House Hotel in Baltimore County, Maryland. Plaintiffs also assert that Cheryl and David repeated their concerns about the threats to Savage and Ryan on several occasions after the March 14th hearing, but that no action by anyone connected with the government was taken to protect David or Cheryl with respect to any danger in connection with their testifying against Grandison. Plaintiffs further claim that Savage and Ryan knew or should have known that Grandison had threatened harm to a witness involved in an earlier criminal prosecution of Grandison and, in fact, had subsequently harmed that witness.3 Plaintiffs do not claim that Cheryl or David ever requested protection, nor do they assert that the government offered to provide the Piechowiczes with the same.

On April 28, 1983, David and Susan C. Kennedy (Susan) were "gunned down gangland style"4 by an agent of Grandison while David and Susan were working at the reception desk of the Warren House Hotel. Subsequently, in a second criminal case brought in this Court5 Grandison and others were convicted for those murders. The evidence in that later criminal case indicated that David had been murdered to prevent him from testifying against Grandison at the scheduled May 3, 1983 trial, and that Susan was murdered in the mistaken belief that she was Cheryl.

On March 13, 1986, in this civil case, a twelve-count complaint was filed by surviving family members of the two victims, namely Cheryl Piechowicz,6 Sherrie Marie Waldrup (Sherrie),7 John I. Kennedy, Jr. (John),8 and Melva Kennedy (Melva),9 against the United States and also against Savage and Ryan in their individual capacities.10 Six counts are brought against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80. The other six counts are brought against the two individual defendants, Savage and Ryan, for violation of plaintiffs' constitutional rights under 42 U.S.C. § 1983.

II. The Individual Defendants and Harlow Immunity

Plaintiffs claim against defendants Savage and Ryan in their individual capacities, contending that defendants violated plaintiffs' Fifth Amendment rights by causing the deaths of David and Susan in violation of their constitutional rights to due process of law. Specifically, plaintiffs assert that Savage and Ryan had a duty to warn David and Susan of the danger of testifying against Grandison and/or to protect them from being harmed by Grandison. Savage and Ryan have moved for dismissal of the complaint against them in their individual capacities on the basis of absolute immunity, and, in the alternative, on the basis of qualified immunity pursuant to Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

Savage may not be entitled to absolute immunity because the actions he took in deciding whether or not to warn and/or to protect decedents may not have been made by him solely as an advocate. See Harlow, 457 U.S. at 811 n. 16, 102 S.Ct. at 2734 n. 16; Gray v. Bell, 712 F.2d 490, 499-502 (D.C.Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984). However, regardless of whether Savage is entitled to absolute immunity, he is entitled in this case to the protection afforded by qualified immunity. See Harlow, 457 U.S. at 807-815, 102 S.Ct. at 2732-2737. Similarly, a DEA agent such as Ryan is entitled as a law enforcement official to invoke the doctrine of qualified immunity if the record in this case so permits. Hughes v. Blankenship, 672 F.2d 403, 406 (4th Cir.1982).

In Harlow, Justice Powell wrote that a claim of qualified immunity rests upon the existence, if any, of the "objective reasonableness of an official's conduct, as measured by reference to clearly established law." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738 (footnote omitted). The reason for the doctrine is that "where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken `with independence and without fear of consequences.'" Id. at 819, 102 S.Ct. at 2739 (quoting Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967)).

In Mitchell v. Forsythe, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), Justice White cautioned:

Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.

472 U.S. at 526, 105 S.Ct. at 2816. Under that test, the law must be clearly established "at the time of the official's challenged actions." Id. at 528, 105 S.Ct. at 2816-17. In the instant case, the relevant time frame encompasses the period from March 14, 1983, when Savage and Ryan first became aware of Grandison's threats against the Piechowiczes, until April 28, 1983, when David and Susan were murdered.

The focus of this Court's inquiry therefore becomes whether, during the relevant time frame, the decedents had a clearly established constitutional right to be protected from harm by the government. In Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), the Supreme Court first considered the possibility that a state may be liable for failing to protect a person from harm caused by a non-state actor. In that case, plaintiffs, proceeding under 42 U.S.C. § 1983, brought suit against California parole officials who seemingly had failed to follow state parole procedures with regard to an individual (one Thomas) who later killed Ms. Martinez. Plaintiffs claimed that the parole officials' actions deprived the decedent of her life without due process because the officials "knew, or should have known, that the release of the paroled prisoner created a clear and present danger that such an incident would occur." 444 U.S. at 280, 100 S.Ct. at 556. Writing for a unanimous Court, Justice Brennan affirmed the denial by the California state courts of plaintiffs' quest for relief and wrote, inter alia:

Although the decision to release Thomas the paroled prisoner was action by the State, the action of Thomas five months later cannot be fairly characterized as state action. Regardless of whether, as a matter of state tort law, the parole board could be said either to have had a "duty" to avoid harm to his victim or to have proximately caused her death ... we hold that, taking these particular allegations as true, appellees did not "deprive" appellants' decedent of life within the meaning of the Fourteenth Amendment.
... The parole board was not aware that appellants' decedent, as distinguished from the public at large, faced any special danger. We need not and do not decide that a parole officer could never be deemed to "deprive" someone of life by action taken in connection with the release of a prisoner on parole.

Id. at 284-85, 100 S.Ct. at 559 (emphasis added; citations and footnote omitted).

The Supreme Court thus left open in Martinez the circumstances under which persons "distinguished from the public at large, because they faced any special danger" might recover for a deprivation of their rights under the ...

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