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.
In the events that followed, Mr. Butera failed to gain entry
through the rear door. As he turned to leave, he was approached
by three men who forcefully escorted him
to a nearby courtyard, not visible to the waiting officers. There
he was robbed, beaten, and "stomped" to death. From where they
were, no Defendant was in a position to know whether Mr. Butera
was in trouble or to offer assistance during the course of the
drug buy. Defendant Sargeant Breul testified that when Mr. Butera
failed to appear as scheduled, "I recall rolling down up window
and joking with Detective Patterson, I said why don't you roll
down the window in case we hear any gun shots or screams." Tr.
IAD Interview Sargeant Nicholas Breul at 19. In addition to the
inaccessibility of the attending officers, other police officers
responsible for the pre-planned drug buy were not present,
including Detective Trainum who did not respond to a page
regarding the operation because he was asleep with the pager
turned off. See Defs'. Resp. Pl's.2d Req. Admis. ¶¶ 214-17. As
a result, Mr. Butera was left on a sidewalk bleeding, without the
knowledge of any of the Defendants. It was more than 20 minutes
after Mr. Butera was dropped off that the officers realized that
something had gone wrong and investigated. They later discovered
Mr. Butera's body, but were unable to revive him. Mr. Butera died
as a result of his injuries.
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
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 ...