Schultz v. Borough
| Decision Date | 29 July 2011 |
| Docket Number | CIVIL ACTION NO. 4:10-CV-0262 |
| Court | U.S. District Court — Middle District of Pennsylvania |
| Parties | CARL F. SCHULTZ, JR., CINDY SCHULTZ, MELISSA SCHULTZ, and BEAR & HUNTER, INC., t/d/b/a BIGDOGZ SPORTS BAR, Plaintiffs v. HUGHESVILLE BOROUGH, RICHARD SHEARER, KURT V. HOCKMAN, and MICHAEL PALMETER, Defendants |
(Judge Conner)
This is a civil rights action filed by plaintiffs Carl F. Shultz, Jr., Cindy Schultz, Melissa Schultz, and Bear and Hunter, Inc., t/d/b/a BigDogz Sports Bar against the Borough of Hughesville ("Hughesville"), former Chief of the Hughesville Borough Police Department Richard Shearer ("Chief Shearer"), former Officer Kurt V. Hockman ("Officer Hockman") and Officer Michael Palmeter ("Officer Palmeter") of the Hughesville Borough Police Department . Presently before the court are two motions for summary judgment, one filed by defendants Hughesville Borough and Officer Palmeter (Doc. 59), and the other filed by defendants Chief Shearer and Officer Hockman (Doc. 56). For the reasons that follow, the court will grant in part and deny in part the motions.
Melissa Shultz ("Melissa") is the owner and principal operator of BigDogz Sports Bar ("BigDogz") located in Wolf Township, Pennsylvania, within walking distance of the Hughesville boundary line. (Doc. 58 ¶¶ 14, 37; Doc. 75 ¶¶ 14, 37; Doc. 64 ¶¶ 1-2; Doc. 74 ¶¶ 1-2). She is also President of the corporation Bear and Hunter Inc., a position retained since incorporation of the entity on March 4, 2005. (Doc. 58 ¶ 13, Doc. 75 ¶ 13). Carl Shultz ("Carl"), father of Melissa, is owner of Valley Beverage. (Doc. 58 ¶ 1; Doc. 75 ¶ 1). Carl spends time at BigDogz every day, but he has no ownership interest in the bar, nor is he an employee of the establishment. (Doc. 76, Ex. A, at 36-37; Doc. 58 ¶ 2; Doc. 75 ¶ 2). Cindy Shultz is Carl's wife and owner of Muncie Beverage. (Doc. 64 ¶ 3; Doc. 74 ¶ 3).2
Defendants are Hughesville Borough and current or former members of the Hughesville Borough Police Department ("HBPD"). Former Hughesville Police Chief Richard Shearer began his law enforcement career in 1991. (Doc. 58 ¶ 39; Doc. 75 ¶ 39). He had two stints of employment with HBPD: a period from 1993 to 1995, and a period from January 1999 to February 2010. (Doc. 58 ¶¶ 41-42; Doc. 75 ¶¶ 41-42). Shearer became Chief of Police of HBPD in late 2007. (Doc. 58 ¶ 43; Doc. 75 ¶ 43). On February 8, 2010, the Hughesville Borough Council voted to terminate Chief Shearer's employment with Hughesville. (Doc. 80, Ex. NN). Officer Hockman began his employment with HBPD four years prior to the principal incident in this litigation—the June 6, 2009 traffic stop in the turn lane leading to BigDogz. (Doc. 63, Ex. J, at 58). Officer Palmeter began his employment with HBPD approximately one year prior to that incident. (Doc. 63, Ex. J, at 30).3
The instant litigation revolves around what plaintiffs believe to be the unlawful targeting of the BigDogz establishment by members of HBPD. BigDogz Sports Bar is located in Wolf Township, Pennsylvania, on State Route 220, near the border of Hughesville. Patrons of BigDogz access the establishment by way of a Pennsylvania Department of Transportation right-of-way turn lane. (Doc. 58 ¶ 47; Doc. 75 ¶ 47). Located across the street from BigDogz on State Route 220, also within Wolf Township jurisdiction, is a Citgo Pit Stop fuel station ("Pit Stop"). (Doc. 58 ¶ 38; Doc. 75 ¶ 38). Hughesville maintains a Citgo credit card for fueling its police cruisers, and officers frequently fuel their vehicles at the Pit Stop, sometimes after the Pit Stop convenience store is closed. (Doc. 58 ¶ 61; Doc. 75 ¶ 61). It is undisputed that HBPD does not possess, nor has it ever sought, jurisdiction to patrol within Wolf Township. (Doc. 58 ¶ 66; Doc. 75 ¶ 66).
Carl, Melissa, and Bear and Hunter, Inc. contend that, despite HBPD's lack of jurisdiction in Wolf Township, members of HBPD would park at the Pit Stop and watch BigDogz, intentionally conduct traffic stops in the turn lane leading to BigDogz, and follow BigDogz patrons and employees exiting the establishment. Carl, Melissa and employees of BigDogz report numerous comments and complaints from patrons about the police presence. (See e.g., Doc. 77, Ex. F, at 13-14; Doc. 77, Ex. E, at 15, 17; Doc. 77, Ex. G, at 22-24). Melissa testified that she frequently viewed officers filling up their police cruisers at the Pit Stop. (Doc. 64 ¶¶¶19, 22; Doc. 74 ¶¶ 19, 22). Employees and patrons of BigDogz observed HBPD cruisers at the Pit Stop on many occasions, sometimes not fueling but simply parked in a manner to observe the BigDogz establishment. (Doc. 77, Ex. F, at 10-13; Doc. 77, Ex. G, at 21-22; Doc. 77, Ex. I, at 9-10; Doc. 78, Ex. J, at 12-14). Several patrons reported being followed by HBPD after exiting the BigDogz establishment or Carl's business, Valley Beverage. (Doc. 76, Ex. D, at 11-14; Doc. 77, Ex. E, at 9, 12, 13 Doc. 77, Ex. F, at 10-12; Doc. 77, Ex. H, at 13-14, 18; Doc. 77, Ex. I, at 11-13; Doc. 78, Ex. J, at 20-21). Additionally, employees reported numerous traffic stops by HBPD in BigDogz' turn lane. (Doc. 77, Ex. E, at 15-16).
Chief Shearer testified that he received almost daily complaints from Carl or others at BigDogz regarding HBPD conduct outside the Borough near the BigDogz establishment. (Doc. 79, Ex. Q, at 25). Chief Shearer also reported conducting over 100 traffic stops in his career with HBPD in the vicinity of BigDogz. (Doc. 79, Ex. P, at 124-125). In addition to their complaints to HBPD about police monitoring, Carl and Melissa contacted their state representative, also their attorney, Garth Everrett, Esquire, about HBPD conduct. (Doc. 76, Ex. A, at 11). Everrett, in turn, contacted the mayor of Hughesville, Frank Welsh,4 about HBPD presence near BigDogz. (Doc. 78, Ex. M, at 62-63). On one occasion, Carl contacted Mayor Welsh directly tocomplain about HBPD police cruisers sitting at the Pit Stop. (Doc. 78, Ex. M, at 62). Chief Shearer spoke with Mayor Welsh about these complaints, and Mayor Welsh issued a directive to HBPD to refrain from responding to calls about BigDogz or Valley Beverage without Pennsylvania State Police presence on the scene. (Doc. 79, Ex. P, at 70-72). Neither Carl or Melissa registered complaints directly with the Hughesville Borough Council about alleged police harassment. (Doc. 58 ¶¶ 21, 87; Doc. 75 ¶¶ 21, 87). Nevertheless, according to Chief Shearer, Hughesville Borough Council was aware of the complaints and Mayor Welsh's directive. (Doc. 79, Ex. P, at 70-72).
Conflict between the parties reached a boiling point on June 6, 2009. At approximately 9:48 p.m. that evening, Officer Palmeter initiated a lawful traffic stop of a motorcyclist in the Route 220 turn lane leading to BigDogz. (Doc. 58 ¶¶ 91-92; Doc. 75 ¶¶ 91-92). Suspecting a DUI violation, Officer Palmeter radioed Officer Hockman—a field sobriety test certified officer—for backup. (Doc. 58 ¶ 93; Doc. 75 ¶ 93). When Officer Hockman arrived, he pulled in behind Officer Palmeter's vehicle and activated his dashboard camera video and audio recording device. (Doc. 81, Ex. HH). As Officer Palmeter was escorting the motorcyclist to the rear of the police cruiser Carl Schultz approached the officers in the turn lane and inquired "you guys gonna be out here that much longer, its ten o'clock." (Doc. 58 ¶¶ 94-95; Doc. 75 ¶¶ 94-95). Officer Palmeter responded that the stop would last as long as necessary to handle situation and explained: "I know it's ten o'clock, but you needto get going . . . wherever you're going you can't be here - Okay?" (Doc. 81, Ex. HH). Officer Hockman engaged Carl in a discussion as to his involvement in the traffic stop. Carl claimed that the traffic stop was taking place on his property (Doc. 58 ¶¶ 105, 108; Doc. 75 ¶¶ 105, 108; Doc. 79, Ex. Q, at 63), and told Officer Hockman that he intended to telephone his attorney about the police conduct. (Doc. 58 ¶ 99; Doc. 75 ¶ 99). Carl retreated some distance from the traffic stop into the BigDogz parking lot—the exact distance is disputed—and proceeded to make a telephone call. (Doc. 58 ¶¶ 109, 110; Doc. 75 ¶¶ 109, 110). As a result of Carl's interaction with the police stop, Officer Hockman radioed Chief Shearer for backup. (Doc. 58 ¶ 102; Doc. 75 ¶ 102). Thereafter, Carl returned to the entrance area of Bigdogz. (Doc. 81, Ex. II).
When Chief Shearer arrived at the scene Officer Hockman advised him that Carl was interfering with the traffic stop. (Doc. 58 ¶ 115; Doc. 75 ¶ 115). Officer Hockman provided Chief Shearer with the microphone device from his police cruiser and together they proceeded to BigDogz to speak with Carl. (Doc. 58 ¶¶ 116-117; Doc. 75 ¶¶ 116-117). The parties dispute whether the microphone was visible during the ensuing conversation. Chief Shearer opened the door to the establishment and requested that Carl step outside to speak with the officers. (Doc. 58 ¶ 123; Doc. 75 ¶ 123). After some hesitance, Carl exited along with an employee of BigDogz. (Doc. 81, Ex. HH). Chief Shearer warned Carl that if he ever interfered with another traffic stop again, he would be arrested. (Id.) Carl maintained that the traffic stop occurred on his property, and stated that he was tired of police intimidation of his clientele. (Id.) The officers explained that they were notattempting to harm BigDogz business, that they were simply doing their job, and that they could not control where individuals pulled over during traffic stops. (Id.) Carl informed the officers that the parties would have to settle the matter in court. (Id.) Officer Hockman and Chief Shearer returned to their patrol cars, and Chief Shearer returned the microphone to Officer Hockman. (Id.) A discussion ensued about contacting the Pennsylvania Liquor Control Board ("PLCB") to report Carl's conduct. Later that night, Officer Hockman contacted the PLCB and filed...
To continue reading
Request your trial