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WRIGHT v. UNITED STATES

April 15, 1997

PATRICIA A. WRIGHT, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.


Louis F. Oberdorfer, UNITED STATES DISTRICT JUDGE


The opinion of the court was delivered by: OBERDORFER

This case involves a lawsuit for damages under the Federal Tort Claims Act ("FTCA"). Plaintiffs allege that the United States Park Police engaged in an unreasonable search and seizure of their home in northwest Washington, D.C. They originally filed suit against the United States, the District of Columbia, and several individuals, all of whom were affiliated with the U.S. Park Police. See Pl.'s Compl. at 2-3. Prior to trial, the allegations against the District of Columbia were dismissed due to plaintiffs' failure to allege any wrongdoing on the part of the District or any District employee. The allegations against the individual defendants were also dismissed based on grounds of qualified immunity. Thus, the only claims that proceeded to trial were those against the United States under the FTCA.

 I.

 On March 10, 1992, at approximately 10:00 p.m., twelve officers from the U.S. Park Police forcibly entered and searched the Wrights' home at 437 Kenyon Street pursuant to a search warrant for illegal firearms. In the process, they battered down the front door, kicked open an upstairs bedroom door, and berated, forcibly restrained, and handcuffed various members of the family. One officer struck Justo Cruz on the head with a pistol barrel. Plaintiffs allege, in general, that the officers conducted their search in a negligent, reckless, and malicious manner, resulting in property damage, physical injuries, and emotional distress.

 The primary catalyst for these events was a confidential informant named Daniel Pinkney. Pinkney was an informant for the U.S. Park Police and, on at least five prior occasions, had provided reliable information that led to arrests. His "control officer" was a member of the U.S. Park Police, Officer Michael Smith. *fn1" On March 10, 1992, sometime in the late afternoon, Pinkney telephoned Officer M. Smith, claiming to have been at 437 Kenyon Street earlier that day and to have seen numerous firearms in the basement of the house, including a silver 9mm pistol and a multi-round, quick-loading shotgun, known as a "street sweeper." Pinkney informed Officer M. Smith, moreover, that illegal narcotics were being sold at 437 Kenyon Street, and that he could buy drugs there.

 As it turned out, however, in this particular instance, Pinkney was not a reliable informant. Apparently, unbeknownst to Officer M. Smith, Pinkney and Justo Cruz had formerly been close friends, but had subsequently had a falling out. Pinkney now held a personal grudge against Cruz and sought to fabricate a story, so that the U.S. Park Police would be duped into harassing Cruz for his benefit. Pinkney told the truth concerning one fact, however. Cruz did possess a silver 9mm pistol at 437 Kenyon Street. That pistol had been validly purchased by Justo Cruz's brother, David Cruz. On the morning of March 10, 1992, the two of them had gone to a shooting range in eastern Virginia. David Cruz had left the pistol, however, along with its carrying case, at the Wrights' home in the District -- where possession of a firearm is illegal.

 Officer M. Smith, unaware of the animosity between Pinkney and Cruz, relied on the information provided by Pinkney, and requested that he attempt to engage in a controlled buy of narcotics from 437 Kenyon Street. During the evening of March 10, 1992, at around 7:00 or 8:00 p.m., Officer M. Smith and another member of the U.S. Park Police, Officer Todd Reid, accompanied Pinkney to that address in a white unmarked police van with tinted windows. They parked across the street, and the police officers gave Pinkney a pre-marked sum of money. Pinkney then walked to the front door of 437 Kenyon Street. Patricia Wright and Justo Cruz observed Pinkney as he was walking towards the front porch, but neither of them knew why he was there. Cruz did not wish to talk to Pinkney, however, so he left through the back door, as Patricia Wright admitted Pinkney through the front door. Pinkney entered the house and, without incident, followed Cruz out the back door into an alley behind Kenyon Street. There, he found Cruz standing with a friend, James Evans, also known as "Squeaky." Cruz proceeded to confront Pinkney about something Pinkney had said previously. The conversation quickly became heated, and at some point, Cruz and Squeaky threatened to assault Pinkney.

 After the police van drove away and Pinkney was dropped off, Officers M. Smith and Reid informed their superior, Sergeant John Marsh, about what had transpired. Sergeant Marsh then drafted an affidavit in support of a search warrant and obtained the approval of an Assistant United States Attorney. The AUSA, however, allegedly instructed Marsh to omit the information about the failed controlled buy, in order to protect the identity of Pinkney as a confidential informant. Based on the affidavit submitted by Sergeant Marsh, the U.S. Park Police obtained a warrant from Judge Queen, authorizing a search of 437 Kenyon Street for illegal firearms and ammunition.

 At about 10:00 p.m., with warrant in hand, the U.S. Park Police assembled a twelve-officer SWAT force at a staging area near the Washington Metropolitan Hospital. Four members of the team were fully fledged Park Police SWAT officers: Sergeant James Moore, Officer Patrick Smith, Officer Brian Casey, and Officer Craig Davis. Each wore black raid gear, consisting of a black helmet, black sweater, and black fatigue pants. They were identified by gold U.S. Park Police badges on their chest and were armed with semi-automatic rifles. There were also five Park Police Narcotics/Vice officers: Sergeant Marsh, Officer John Dowd, Officer Richard Eagan, Officer Reid, and Officer M. Smith. Each of those officers wore street clothes and a vinyl raid jacket, which if buttoned up, displayed the words "Park Police" on the front and back. Officers Dowd and Eagan were also carrying a battering ram. Lastly, there were three officers from the Rock Creek Park station: Lieutenant Henry Berberich, who was the ranking officer in the group, Sergeant Charles Orton, and Officer Michelle Berkowitz. Those officers wore traditional Park Police uniforms, with blue shirts, blue pants, a badge on the front chest, and a patch on the left shoulder.

 At the staging area, the officers were briefed about the search warrant and told that a confidential informant had reported seeing guns in the basement of the house. They were also warned that the search would be "high risk." Thereafter, the police force proceeded to 437 Kenyon Street to execute the search warrant. The officers deployed themselves, and Sergeant Marsh performed the knock-and-announce. He testified that he knocked loudly on the front door twice and announced "Police with a warrant." Meanwhile, inside the house, Justo Cruz was in his basement-bedroom with Michelle Cruz, when he heard what he believed was a noisy commotion on the first floor. He went up to investigate, and fearing that Pinkney had come back with some friends, he brought his brother's 9mm pistol with him, tucked into the waistband near the small of his back.

 According to Justo Cruz, he went upstairs to the first-floor foyer, which was unlit. The front door was closed and locked, and the blinds covering the windows were shut. Cruz lifted up one of the slats on the blinds, to peer out. Once he saw the police, he shouted, "I gotta get a key." Apparently, the front door was locked in such a manner that it required a key to open the door from both the outside and the inside. Cruz then stepped away from the front door, towards the right-hand wall, where the key was hanging. At the same time, he took the 9mm pistol from his waistband and placed it on the bookshelf.

  Patricia Wright testified that, when the front door is closed, the blinds are shut, and the foyer light is off, a person standing outside on the porch cannot see inside the house. Sergeant Marsh testified -- contrary to Cruz -- that the foyer was lit from the inside, and therefore, he could see "something like a gun" in Cruz's hand, at which point he determined the existence of exigent circumstances. Marsh claims that he shouted, "Gun!" -- as a warning to the other police officers. *fn3" Then, he ordered Officers Dowd and Eagan to break open the door with the battering ram. All of the officers had their weapons drawn when Officers Dowd and Eagan rammed open the door. The SWAT team entered first to secure the area. SWAT Officers P. Smith and Davis went to the second floor, and SWAT Sergeant Moore went down to the basement.

 At this point, the different versions of what happened diverge substantially. According to Justo Cruz, who was inside the door on the first floor, he immediately placed his hands up in the air and attempted to "assume the position" against the wall near the bookcase. Officer P. Smith, who was trying to reach the stairs quickly to the second floor, shoved Cruz out of the way, pushing him onto the bottom steps of the stairway. Officer P. Smith then proceeded up the stairs. Officer Dowd's assignment was to subdue Cruz as soon as he entered the foyer, so he pushed Cruz off the stairs and threw him down onto the foyer floor. Officer Dowd testified that Cruz attempted to get up off the floor several times. So, during the third attempt, he hit Cruz on the head with the barrel of his gun. The blow left a single laceration on Cruz's scalp. After that, Cruz lay still, and Officer Dowd handcuffed him. Cruz claims that, sometime after he was handcuffed, Dowd struck him a second time with a gun. *fn4" A few minutes later, Cruz was picked up and brought into the dining room.

 On the second floor, Officer P. Smith ran up the stairway, where he claims to have seen Patricia and Tyrone Wright running down the hallway towards their bedroom. Officer P. Smith testified that he ordered the Wrights to "get down," but they continued heedless into their bedroom and closed the door. According to the Wrights, however, Officer P. Smith could not have possibly seen them running down the second-floor hallway because they were in their bedroom during the entire time. In any event, by the time Officer P. Smith reached the door to the Wrights' bedroom, it was closed. Officer P. Smith announced that he was a police officer and then kicked open the door.

 Patricia and Tyrone Wright were both standing near the bed. They were shouting, "Why are you here? Get out of here!" After Officer P. Smith entered the room, Officer Reid followed shortly thereafter. Officer P. Smith pushed Tyrone Wright to the floor, and Officer Reid either knelt or stood on top of him. Officer Reid claims that he then holstered his pistol, knelt on top of Tyrone Wright's back with one knee and proceeded to handcuff him. He took one arm and brought it behind Tyrone Wright's back and placed the handcuff on, then switched knees, and took the other arm and locked the handcuffs together. In contrast, Tyrone Wright claims that Officer Reid held a gun to his head while handcuffing him, and then stomped on his back several times and kicked him in the legs once. During this time, Officer P. Smith stood in the doorway with his semi-automatic rifle.

 After handcuffing Tyrone Wright, Officer Reid then went to Patricia Wright and told her to "Shut the f up." Patricia Wright admits that she was highly agitated. Although Officer Reid tried to force Patricia Wright to sit down on the bed, she continually tried to stand up. At one point, Officer Reid pushed Patricia Wright down on the bed and held her there. According to Patricia Wright, he also held a gun to her head and said, "I'm gonna blow your mother-f brains out." Some time later, Officer Berkowitz, who was the only female officer among the twelve, came upstairs and asked if anyone needed to be searched. Officer Berkowitz conducted a quick pat-down search of Patricia Wright, over her clothes. On several occasions, Patricia Wright asked to see a search warrant, but the officers informed her that she would receive one later.

 Finally, in the basement, Sergeant Moore went downstairs and found Michelle Cruz in bed. He ordered her to put her hands up in the air. She told him that she had no clothes on, but Sergeant Moore repeated his order. According to Michelle Cruz, he had a semi-automatic rifle pointed at her forehead, almost touching her. Sergeant Moore claims that he was at least several feet away. Eventually, when Michelle Cruz stood up and put her hands in the air, her bed-sheet fell down, exposing her as unclothed. Michelle Cruz was immediately given a nightshirt to cover herself. Officer Berkowitz then conducted a quick pat-down search of Michelle Cruz, even though it must have been obvious that she possessed no weapons. Thereafter, Michelle Cruz was brought upstairs to the kitchen.

 After all of the inhabitants of the house were accounted for, the police officers were given the "All Clear" signal, and they holstered their firearms. Then, they proceeded to conduct a room-by-room search of the house. Lieutenant Berberich informed Patricia and Tyrone Wright that they would receive a copy of the warrant once the search was completed. The police officers searched the house for illegal firearms, opening closets and drawers, and removing some of the Wrights' clothing and personal items. According to Sergeant Marsh, normal police procedure dictates that removed items should be left out, so that they can put back into place by their rightful owners. *fn5" After searching the house, the police officers recovered a silver 9mm pistol, an ammunition clip, a buck knife, and a machete. The buck knife and machete were found in the basement, and Justo Cruz testified that they were mementoes from his father. Finally, as the police were preparing to leave, Patricia Wright was furnished with a copy of the search warrant.

 Based on possession of the silver 9mm pistol, the U.S. Park Police decided to arrest Justo Cruz. Officers P. Smith and Davis first took him in their squad car to the District of Columbia General Hospital, where his head wound was treated. Then, Cruz was taken to the local police station, where he was booked by the desk clerk on duty for possession of an unregistered firearm and possession of unregistered ammunition. Cruz spent the remainder of the night in jail. According to Lieutenant Berberich, however, the desk clerk could have simply issued a citation to Cruz and then released him from custody. The failure to do so was characterized by Lieutenant Berberich as a "screw-up." Eventually, the charges against Cruz were dropped.

 II.

 After the close of plaintiffs' case-in-chief, the Government moved for judgment on partial findings. See Fed. R. Civ. P. 52(c) (1996). An Order dated October 8, 1996, ruled that, in light of the lack of evidence regarding Fannie Wright, her claims would be dismissed. After the close of summations, the remainder of the case was taken under advisement. The testimony and documentary evidence establish the following findings of fact, which have been proven by a preponderance of the evidence:

 1. Based on the information available at the time, Officer M. Smith acted reasonably in relying on the statements of the confidential informant, Daniel Pinkney. Officer M. Smith also acted appropriately in conducting further investigation and requesting Pinkney to attempt a controlled buy of narcotics from 437 Kenyon Street.

 2. At the time of the attempted controlled buy, it is more likely than not that Officers M. Smith and Reid observed ...


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