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July 7, 1999


The opinion of the court was delivered by: June L. Green, District Judge.


Before the Court is Plaintiff's Motion for Partial Summary Judgment and Defendant District of Columbia's separate Motion for Summary Judgment and Cross-Motion for Partial Summary Judgment in this wrongful death and deprivation of civil rights action. For the reasons that follow, Plaintiff's motion is denied and Defendants' motion and cross-motion are also denied.


The following are material facts, some of which are disputed. During the period of July 1, 1997 through December 31, 1997, the individual Defendants, Detectives Patterson and Brigidini, Sargeant Breul, and Lieutenant McAllister, were employed by the Metropolitan Police Department ("MPD"). On or about November 13, 1997, decedent Eric Michael Butera (Plaintiff's son) telephoned the MPD to report that he had overheard, on more than one occasion, someone mentioning the highly publicized triple homicide at the Starbucks Coffee Shop in upper Georgetown, which had occurred earlier that July. Mr. Butera had overheard this information first on July 8, 1997 while in the process of purchasing and/or using narcotics at 1015 Delaware Avenue, S.W. and then again approximately a week later at the same address. In addition, Mr. Butera advised the MPD that he had also seen various kinds of firearms at that address. Mr. Butera admitted that he had been going to 1015 Delaware Avenue for many years to purchase and use narcotics.

Mr. Butera was subsequently asked by the MPD to come in, and after looking at mug shots, affirmatively identified the man who he had overheard talking about the Starbucks murders. In order for the investigation to proceed and to pursue evidence of probable cause to search for weapons used at the Starbucks shooting, the MPD decided to arrange a pre-planned drug purchase targeted at 1015 Delaware Avenue, in which Mr. Butera agreed voluntarily to participate undercover. Mr. Butera had no pending criminal charges against him in the District of Columbia nor did he seek or receive any benefit or recompense from the MPD in exchange for the information provided about 1015 Delaware Avenue. Defendants, aware before the pre-planned drug purchase that criminal activity involving drug use was ongoing at the targeted address, assured Mr. Butera that the MPD "would exercise proper care to ensure that he would not be harmed" and that it would "carefully watch and monitor [Mr. Butera] throughout the process." Defs'. Resp. Pl's. First Req. Admis. ¶¶ 80-81. Defendant officers also provided Mr. Butera with information as to the risks involved in the operation, although it is disputed whether he was apprised of all the associated risks.

Before the planned buy, Mr. Butera provided the MPD with a detailed description of his normal course for making drug buys at 1015 Delaware Avenue. He explained that he would enter and exit through the rear door and that the drug transactions usually took no more than 10 to 15 minutes. He agreed with the MPD on a pre-arranged rendezvous point to meet after the purchase.

On the evening of December 4, 1997, the MPD escorted Mr. Butera to 1015 Delaware Avenue where Mr. Butera was dropped off by Detective Brigidini. Detective Brigidini then drove away in order to make it appear that everything was normal, to an area that did not have a view of the events surrounding the drug buy. It is disputed whether the detective waited until Mr. Butera arrived at the door of the premises before driving away. See Dep. Tr. Thaddis Liles at 22-25; Tr. IAD Interview Detective Brigidini at 14. Additional police officers participating in the pre-planned drug buy were also parked in a spot that did not provide a view to the events that subsequently transpired. See Defs'. Resp. Pl's. First Req. Admis. ¶ 122.


Summary Judgment Standard

A motion for summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must view the material presented in the light most favorable to the non-moving party, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), and resolve all doubts as to facts or the existence of facts against the moving party. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Summary judgment will not lie if a reasonable jury could find that the nonmoving party is entitled to a verdict. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Defendants' Motion for Summary Judgment

Substantive Due Process

Plaintiff's constitutional claims are brought pursuant to 42 U.S.C. § 1983 on behalf of herself and the estate of her son, the decedent. She claims that the Defendants, acting in their official capacity, deprived her son of his constitutional right to due process of law by failing to protect him from harm during the drug-buy operation.*fn1

Constitutional claims alleging deprivation of due process are properly analyzed under the Fifth Amendment to the United States Constitution.*fn2 According to the Supreme Court, the proper analysis is to determine first whether the Plaintiff has alleged a deprivation of a constitutional right, and then decide whether that right was clearly established at the time of the events in question. See County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1714 n. 5, 140 L.Ed.2d 1043 (1998). Accordingly, the Court turns first to the specific right alleged.

The constitutional right Plaintiff alleges essentially is her son's right to life. Although most such claims arise in the context of an arrest where the person is killed, there is precedent that substantive due process rights protect individuals in situations other than arrest or seizure by a law enforcement official. See id. 523 U.S. 833, 118 S.Ct. at 1715 (substantive due process is preserved for "those instances in which a free citizen is denied his or her constitutional right to life through means other than a law enforcement official's arrest.") (citing Pleasant v. Zamieski, 895 F.2d 272, 276 n. 2 (6th Cir.), cert denied, 498 U.S. 851, 111 S.Ct. 144, 112 L.Ed.2d 110 (1990)). The issue is not whether ...

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