.jpg)
PITTSBURGH – A federal judge has granted in part, denied in part and partially held in abeyance a motion for summary judgment filed by two Pittsburgh police officers, in a lawsuit brought by a woman who alleged she was unlawfully arrested because she didn’t support former President Donald Trump.
Plaintiff Darian Balcom first filed suit on May 2, 2019 in the U.S. District Court for the Western District of Pennsylvania against the City of Pittsburgh, Officers Gabe Figueroa and John Doe, under the First and Fourteenth Amendments to the U.S Constitution.
An amended version of the complaint filed on Aug. 28, 2020 added Officers Leo, Donnolley, Smith and Zarate as defendants.
According to the complaint, the plaintiff owns and manages rental properties in Pittsburgh, and was asked in writing by the owner of a neighboring building to feed dogs believed to be abandoned, on Dec. 18, 2017.
The plaintiff alleged when she entered the apartment, she found two cats inside that were not properly cared for – and then took the cats to an empty unit in her apartment building to care for them.
The suit stated five police officers entered the plaintiff’s apartment building without her consent and without a warrant, and accused the plaintiff of illegally entering the apartment and stealing the cats.
Balcom alleged that when Figueroa, a Pittsburgh police officer, asked her if she was a supporter of President Donald Trump and she responded that she was not, that Figueroua said he was glad Trump had won. When Figueroa spoke to Balcom's friend Matthew, out of earshot from the plaintiff, he allegedly told Matthew that while the plaintiff had not done anything wrong, she had "sassed" the police and that when a person does that, they get arrested. Figueroa also reportedly referred to the plaintiff as a "bleeding heart liberal." Matthew was not arrested or charged in the incident.
The suit stated Balcom was taken to the Allegheny County Jail, held overnight and was charged with felony trespassing, theft and burglary, though the charges were later withdrawn.
On Oct. 1, 2019, counsel for the defendants filed a motion to dismiss Balcom’s lawsuit, arguing she has no valid Section 1983 civil rights violation claims.
“Any claims against the City of Pittsburgh should be dismissed with prejudice for failure to properly allege a widespread municipal policy or custom that was the moving force behind the alleged Constitutional injuries. Plaintiff failed to state a claim for municipal liability under a failure to train, control or supervise theory. Further, the actions of one officer, claimed by the plaintiff to be evidence of a failure to train, control, or supervise, does not amount to a widespread policy or custom,” the dismissal motion read, in part.
The magistrate judge opted to throw out Balcom’s municipal liability claim under Monell on April 28, 2020, but denied the defendants’ motion in all other respects.
Both plaintiff attorneys and defense counsel for Officers Leo, Donnelly and Smith filed a mutual stipulation on May 29, 2020 that dismissed the trio of officers from the suit without prejudice. The City of Pittsburgh, Figueroa and Zarate all remain as defendants.
Meanwhile, Figueroa and Zarate filed a motion for summary judgment on July 16, countering that the discovery process “has failed to yield a ‘genuine dispute as to any material fact’ and the defendants are ‘entitled to judgment as a matter of law.”
Rather, the officers argued they had probable cause to arrest Balcom.
“Plaintiff will most certainly respond that the apartment and the animals inside had been abandoned and that the building managers had given her permission to enter the apartment, but it is not plaintiff’s knowledge or understanding that controls here. What matters is what information the arresting officers had at the time of the arrest, and discovery yielded no evidence that Officers Figueroa and Zarate knew or should have known that plaintiff believed that she was authorized to be in the upstairs unit of 3538 Fleming Avenue. Further, there is no constitutional right to an error-free investigation,” the summary judgment motion said.
“As probable cause existed for plaintiff’s arrest, her Fourth Amendment false arrest/malicious prosecution must fail. The fact that her charges were ultimately withdrawn has no bearing, either, because withdrawal of charges due to absence of a necessary witness is a determination made by prosecuting attorneys.”
Figueroa and Zarate further asserted their rights to judgment based on qualified immunity.
UPDATE
U.S. Magistrate Judge Cynthia Reed Eddy issued a report and recommendation on Feb. 28 that the defendants’ summary judgment motion would be partially granted, partially denied and partially held in abeyance as to its various counts.
“It is specifically recommended that defendant officers’ motion be granted with respect to plaintiff’s Fourth Amendment false arrest/malicious prosecution claims and denied with respect to plaintiff’s First Amendment retaliation and Fourteenth Amendment equal protection claims and held in abeyance with respect to whether plaintiff’s First Amendment right against retaliation was clearly established at the time of her arrest in 2017 and referred back to the undersigned to schedule supplemental briefing,” Eddy said.
Eddy explained that the plaintiff did not substantively respond to the defendants’ argument regarding her Fourth Amendment claims, so she recommended they be dismissed – but said that the First Amendment claims should be kept.
“While defendant officers seek to draw a distinction between plaintiff and Mr. Grebner’s responses to officers’ questions regarding whether they had permission to enter the apartment when Mr. Grebner responded he ‘had no reason to believe we were not authorized’ versus plaintiff’s statement that she ‘did not need [Ms. Snyder’s] permission’ to enter, what effect these statements had on defendant officers’ decision to arrest only plaintiff for entering the apartment and removing the cats is a question of fact for the jury to decide,” Eddy said.
As for the equal protection claim, Eddy ruled that it also should be denied.
“It can be reasonably inferred…in this context [that ‘sweetheart’] could be implied as a derogatory term used to describe insubordinate or non-subservient behavior by women or girls. Further, Officer Figueroa told Mr. Grebner that he wanted to let him go, but his answer was not good enough, which could be construed as coaching Mr. Grebner to answer his question in a way to support not charging Mr. Grebner for the same conduct he and plaintiff were engaged in, whereas plaintiff was not ‘coached’ to give the correct answer,” Eddy said.
“These facts are sufficient to allow a reasonable jury to conclude that plaintiff was treated differently than Mr. Grebner based on her sex/gender and it is respectfully recommended that defendants’ motion for summary judgment on this basis be denied.”
Finally, Eddy ruled that the defendants’ claims for qualified immunity be held in abeyance for the time being.
“The burden rests with plaintiff to identify case law that establishes that defendants’ conduct violated some clearly established statutory or constitutional right and she cites to no case law or provides any further argument regarding whether her right to be free from police retaliation, regardless of probable cause, was clearly established in 2017 at the time of her arrest,” Eddy stated.
“Likewise, defendants have offered no light on this issue. Because this issue is not fully briefed, it is respectfully recommended that defendants’ motion for summary judgment be partially held in abeyance and referred back to the undersigned to schedule supplemental briefing.”
The plaintiff is seeking all reasonable sums due, attorney’s fees and court costs.
The plaintiff is represented by Margaret S. Coleman and Timothy P. O’Brien of the Law Offices of Timothy P. O’Brien, in Pittsburgh.
The defendants are represented by Emily McNally, Julie E. Koren, Michael E. Kennedy and Yvonne Schlosberg Hilton of the City of Pittsburgh’s Law Department, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:19-cv-00506
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com