Tristani v. City of Pittsburgh

• Decision Date: 30 May 2000
• Citation: 755 A.2d 52
• Parties: Brian L. TRISTANI v. CITY OF PITTSBURGH, Appellant. (Five Cases). Brian L. Tristani, Appellant, v. City of Pittsburgh.
• Court: Pennsylvania Commonwealth Court

755 A.2d 52

Brian L. TRISTANI v. CITY OF PITTSBURGH, Appellant. (Five Cases).

Brian L. Tristani, Appellant, v. City of Pittsburgh.

Commonwealth Court of Pennsylvania.

Argued February 8, 2000.

Decided May 30, 2000.

Reargument Denied August 4, 2000.

Susan E. Malie, Pittsburgh, for appellant.

Timothy P. O'Brien, Pittsburgh, for appellee.

Before DOYLE, President Judge, FRIEDMAN, J., and RODGERS, Senior Judge.

RODGERS, Senior Judge.

In these consolidated cross-appeals, the City of Pittsburgh (City) and Brian L. Tristani (Plaintiff) appeal from the orders of the Court of Common Pleas of Allegheny County (trial court) dated September 2, 1997 and February 5, 1998, denying the City's motions for judgment on the pleadings and summary judgment, denying the parties' motions for post-trial relief, and entering judgment for Plaintiff against the City.

On May 18, 1991, Plaintiff traveled with a group of friends from Fairmont, West Virginia to Pittsburgh, Pennsylvania, to attend a bachelor party. The group registered at the Best Western Hotel, located in the Parkway Center Mall, at approximately 7:00 p.m. They had a few beers in the room, some drinks in the hotel bar, and from there the men walked to Confetti's, a nightclub also located within the mall.

Confetti's employed off-duty police officers who were stationed outside the club. At approximately 1:00 a.m., Plaintiff and his friends were asked to leave the nightclub. The club manager eventually requested assistance from City police officers Richard Speth and David Black, who were working at the club that evening, armed and attired in police uniform. In the course of leaving the club and heading toward the hotel, members of the group engaged in heated arguments and vandalism of property and were pursued by officers Speth and Black.

Plaintiff was eventually arrested by Speth. Plaintiff was injured when Speth's gun discharged while Speth was in the course of handcuffing him.

Following the incident, Plaintiff was charged with eleven criminal offenses. Plaintiff was found guilty of resisting arrest and public intoxication. Charges of aggravated assault and terroristic threats were dismissed and Plaintiff was acquitted of the remaining charges. It was determined that Plaintiff, an All-American academic and athlete and recent college graduate with no criminal record, had a blood alcohol level of .237.

Plaintiff filed a nine-count complaint against Speth, the City and two corporate defendants, but the case proceeded to trial only against the City. During trial, Plaintiff voluntarily dismissed Counts II-IX and proceeded only on Count I, a civil rights claim under 42 U.S.C. § 1983. In pertinent part, Count I avers that: 1) Plaintiff's arrest was in violation of his right under the Fourth Amendment to be free from unreasonable arrest and his right under the Fourteenth Amendment to due process of law, 2) the arrest was made under color of Speth's authority as a City police officer and 3) the arrest was a direct outgrowth and result of the City's policy and practice of permitting off-duty police officers to work as armed security guards at establishments serving alcoholic beverages without adequate instructions regarding the circumstances under which they may unholster their service revolver and without adequate monitoring or supervision.

At trial, Plaintiff presented evidence that secondary employment within the City is authorized by a written regulation. Police officers can obtain secondary employment in one of two ways: 1) by requests filed through the office of Chief of Police or 2) by separate negotiations with employers. The City's regulation prohibits off-duty officers from working at establishments that serve alcoholic beverages. However, in practice, the prohibition does not apply where employment is limited to outside areas of such establishments.

Plaintiff's expert testified that the City's secondary employment policy did not conform to the model standards set forth in the International Association of Chiefs of Police (IACP) Model Policies. Where police powers are likely to be used, the IACP model policy requires control and supervision, to insure that officers comply with department rules and regulations.

Plaintiff presented evidence that, although Speth had not filed an application for secondary employment, the City was aware of his secondary employment at Confetti's. The City had received complaints from several individuals who alleged that Speth had been physically abusive to them while they were inside or outside Confetti's. Documentary evidence reflected that the City's Public Safety Director and the City's Deputy Chief of Police in charge of professional responsibility were concerned that the sanctioned off-duty employment of police officers was not well controlled.

The parties offered conflicting versions of the events immediately preceding the shooting. According to Plaintiff, he left the bar as requested and followed a friend toward the hotel, and he was neither involved nor aware of the arguments and acts of vandalism engaged in by his companions. Speth obtained a ride from a security guard patrolling the mall, entered the car with his gun drawn and proceeded with his gun pointed out the car window. Plaintiff was walking toward the hotel when Speth exited the car with his weapon pointed at Plaintiff. Speth told Plaintiff that he was under arrest and ordered him to the ground. Plaintiff had raised his hands and had begun to lower himself when Speth rushed to his side, kicked his legs out from under him and slammed the barrel of the gun into Plaintiff's back. Speth's gun discharged into Plaintiff's back and the bullet went through his lung.

The City's version of the facts differed from Plaintiff's in significant respects. According to the City's account, Plaintiff was observed committing acts of vandalism as he and his companions proceeded through the mall area. While Officers Speth and Black were chasing two of Plaintiff's companions, Speth observed one man pull a shiny four-inch object out of his pocket. An off-duty fireman accompanying the officers cautioned Speth that one man had pulled a weapon. Speth noticed a man, who turned out to be Plaintiff, standing in the distance and obtained a ride toward him from the mall security guard. Upon reaching Plaintiff, Speth advised him that he was under arrest. After repeated orders to get on the ground and upon Speth aiming his gun directly at Plaintiff, Plaintiff got down on his hands and knees. When Plaintiff did not comply with Speth's orders to get down on the ground, Speth swept Plaintiff's knee out from under him. Speth moved to handcuff Plaintiff with his gun pointed toward the ground and his finger off the trigger. When Speth reached for his handcuffs, Plaintiff jerked his shoulder back, knocking Speth off balance. At that point Speth's weapon accidentally discharged.

In addition to evidence rebutting Plaintiff's version of the facts, the City offered expert testimony by Dr. Charles Winek, a toxicologist.¹ Dr. Winek opined that the City's description of Plaintiff's conduct as unruly and violently boisterous would be consistent with the behavior of a person whose blood alcohol level was .237. Dr. Winek stated that, despite Plaintiff's intoxication, Plaintiff would still have been able to swing his upper body backward while lying on the ground. Dr. Winek also testified that alcohol consumption impairs a person's ability to recall events accurately.

The jury returned a verdict upon special interrogatories, finding that: Speth's conduct was negligent, but was not grossly negligent and did not shock the conscience; Speth's conduct was a substantial factor in bringing about Plaintiff's harm; the City had a policy and/or custom constituting deliberate indifference to the safety of its citizens; and the City's policy was a substantial contributing factor in bringing about Plaintiff's harm. The jury awarded Plaintiff damages for out-of-pocket medical expenses not to exceed $22,802.29.²

Plaintiff filed a motion for post-trial relief, requesting a new trial on the issue of damages only, on the grounds that the award of damages for medical expenses only was against the weight of the evidence. Alternatively, Plaintiff requested a new trial on the issue of liability as it related to Speth's conduct, arguing that the trial court abused its discretion in allowing Dr. Winek to testify. The City also filed a motion for post-trial relief, arguing that it could not be liable under § 1983 as a matter of law, where the jury found that Speth's conduct was negligent, but did not shock the conscience. The trial court denied the motions and entered judgment on February 5, 1998. The instant appeals followed.³

The City first argues that in order for it to be held liable for Speth's conduct under § 1983, it must be shown that the City's policy caused Speth to inflict a constitutional injury, citing Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978),⁴ and City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986).⁵ The City argues that negligence cannot serve as the basis for a constitutional injury and, in the absence of a constitutional injury inflicted by Speth, there can be no liability on the part of the City.

The United States Supreme Court has definitively held that, as a matter of law, negligence is insufficient to support liability under § 1983 generally, and under the due process clause of the Fourteenth Amendment specifically. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986);⁶ County of Sacramento v. Lewis, 523 U.S. 833, 848, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (stating that "liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process."). In order to find a substantive due process injury, there must be a finding that the official conduct ...