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IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF PENNSYLVANIA
GALEN ARMSTRONG, TIM BARTHELMES, MATT BARTKO, CASEY BRANDER, ANTHONY BRINO, SHANE DUNLAP, NICHOLAS HALBERT-BROOKS, EMILY HARPER, MELISSA HILL, MICHAEL JEHN, TOM JUDD, MAX KANTAR, KYLE KRAMER, GIANNI LABEL, JASON MUNLEY, JOANNE ONG, JOCELYN PETYAK, JULIE PITTMAN, JORDAN ROMANUS, JOHN SALGUERO, TIM SALLINGER, PETER SHELL, MAUREEN SMITH, BEN TABAS AND WILLIAM TUTTLE,
Plaintiffs,
v.
CITY OF PITTSBURGH, NATHAN HARPER, Chief, Pittsburgh Bureau of Police, PAUL DONALDSON, Deputy Chief, Pittsburgh Bureau of Police, LT. ED TRAPP, TIMOTHY DEARY, THOMAS PAULEY, ALISA DUNCAN, DORTHEA LEFTWICH, DONALD SNIDER, RICHARD HOWE, LARRY CRAWFORD, DOUGLAS HUGNEY, WILLIAM FRIBURGER, MICHELLE MCHENRY, DAVID SISAK, RITA LEAP, ROBERT SHAW, MICHAEL VEITH, and OFFICERS DOE 1-100,
Defendants.
)))))))))))))))))))))))))))))))))
CIVIL DIVISION
No: 10-01246
U.S. District Judge Nora Barry Fischer
ELECTRONICALLY FILED
JURY TRIAL DEMANDED
ANSWER AND AFFIRMATIVE DEFENSES
AND NOW, come Defendants, CITY OF PITTSBURGH, NATHAN HARPER, PAUL
DONALDSON, LT. ED TRAPP, TIMOTHY DEARY, THOMAS PAULEY, ALISA
DUNCAN, DORTHEA LEFTWICH, DONALD SNIDER, RICHARD HOWE, LARRY
CRAWFORD, DOUGLAS HUGNEY, WILLIAM FRIBURGER, MICHELLE MCHENRY,
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DAVID SISAK, RITA LEAP, ROBERT SHAW and MICHAEL VEITH, by their attorneys, and
files the within Answer and Affirmative Defenses, averring in support thereof as follows:
Introduction
The "Introduction" to Plaintiffs' Complaint is a pleading not recognized by the Federal
Rules of Civil Procedure and is replete with broad generalizations, including conclusions of law,
and therefore no response is required. To the extent a response may be required, the entire
Introduction is denied.
1. The averments of Paragraph 1 constitute conclusions of law to which no response
is required. To the extent a response is required, the same is denied.
2. The averments of Paragraph 2 as to the named Defendants is admitted.
3. The averments of Paragraph 3 as to the named Defendants is admitted.
4. The averments of Paragraph 4 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 4 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 4 are specifically denied.
5. The averments of Paragraph 5 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 5 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 5 are specifically denied.
6. The averments of Paragraph 6 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
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truth or falsity of the averments of Paragraph 6 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 6 are specifically denied.
7. The averments of Paragraph 7 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 7 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 7 are specifically denied.
8. The averments of Paragraph 8 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 8 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 8 are specifically denied.
9. The averments of Paragraph 9 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 9 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 9 are specifically denied.
10. The averments of Paragraph 10 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 10 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 10 are specifically denied.
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11. The averments of Paragraph 11 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 11 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 11 are specifically denied.
12. The averments of Paragraph 12 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 12 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 12 are specifically denied.
13. The averments of Paragraph 13 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 13 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 13 are specifically denied.
14. The averments of Paragraph 14 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 14 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 14 are specifically denied.
15. The averments of Paragraph 15 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 15 regarding background information on Plaintiff.
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The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 15 are specifically denied.
16. The averments of Paragraph 16 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 16 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 16 are specifically denied.
17. The averments of Paragraph 17 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 17 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 17 are specifically denied.
18. The averments of Paragraph 18 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 18 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 18 are specifically denied.
19. The averments of Paragraph 19 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 19 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 19 are specifically denied.
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20. The averments of Paragraph 20 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 20 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 20 are specifically denied.
21. The averments of Paragraph 21 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 21 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 21 are specifically denied.
22. The averments of Paragraph 22 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 22 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 22 are specifically denied.
23. The averments of Paragraph 23 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 23 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 23 are specifically denied.
24. The averments of Paragraph 24 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 24 regarding background information on Plaintiff.
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The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 24 are specifically denied.
25. The averments of Paragraph 25 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 25 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 25 are specifically denied.
26. The averments of Paragraph 26 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 26 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 26 are specifically denied.
27. The averments of Paragraph 27 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 27 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 27 are specifically denied.
28. The averments of Paragraph 28 are admitted in part and denied in part. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
truth or falsity of the averments of Paragraph 28 regarding background information on Plaintiff.
The same are therefore denied with strict proof demanded at trial. The remaining averments of
Paragraph 28 are specifically denied.
29. The averments of Paragraph 29 are admitted.
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30. The averments of Paragraph 30 are admitted in part and denied in part. It is
admitted that Nathan Harper was at all relevant times the Chief of Police and acting under color
or law and pursuant to the policies of the City. The remaining averments of Paragraph 30 are
denied.
31. The averments of Paragraph 31 are admitted in part and denied in part. It is
admitted that Paul Donaldson was at all relevant times the Deputy Chief and was acting under
color of law and pursuant to the policies of the City. The remaining averments of Paragraph 31
are denied.
32. The averments of Paragraph 32 are admitted in part and denied in part. It is
admitted that Clarence Trapp was at all relevant times a Lieutenant and that he was acting under
color of law and pursuant to the policies of the City. The remaining averments of Paragraph 32
are denied.
33. The averments of Paragraph 33 are admitted in part and denied in part. It is
admitted that Officer Deary was a police officer for the City and acting under color of law and
pursuant to the City policies. The remaining averments of Paragraph 33 are denied.
34. The averments of Paragraph 34 are admitted in part and denied in part. It is
admitted that Thomas Pauley was a police officer for the City and acting under color of law and
pursuant to the City policies. The remaining averments of Paragraph 34 are denied.
35. The averments of Paragraph 35 are admitted in part and denied in part. It is
admitted that Alisa Duncan was a police officer for the City and acting under color of law and
pursuant to the City policies. The remaining averments of Paragraph 35 are denied.
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36. The averments of Paragraph 36 are admitted in part and denied in part. It is
admitted that Dorothea Leftwich was a police officer for the City and acting under color of law
and pursuant to the City policies. The remaining averments of Paragraph 36 are denied.
37. The averments of Paragraph 37 are admitted in part and denied in part. It is
admitted that Donald Snider was a police officer for the City and acting under color of law and
pursuant to the City policies. The remaining averments of Paragraph 37 are denied.
38. The averments of Paragraph 38 are admitted in part and denied in part. It is
admitted that Richard Howe was a police officer for the City and acting under color of law and
pursuant to the City policies. The remaining averments of Paragraph 38 are denied.
39. The averments of Paragraph 39 are admitted in part and denied in part. It is
admitted that Larry Crawford was a police officer for the City and acting under color of law and
pursuant to the City policies. The remaining averments of Paragraph 39 are denied.
40. The averments of Paragraph 40 are admitted in part and denied in part. It is
admitted that Douglas Hugney was a police officer for the City and acting under color of law and
pursuant to the City policies. The remaining averments of Paragraph 40 are denied.
41. The averments of Paragraph 41 are admitted in part and denied in part. It is
admitted that William Friburger was a police officer for the City and acting under color of law
and pursuant to the City policies. The remaining averments of Paragraph 41 are denied.
42. The averments of Paragraph 42 are admitted in part and denied in part. It is
admitted that Michelle McHenry was a police officer for the City and acting under color of law
and pursuant to the City policies. The remaining averments of Paragraph 42 are denied.
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43. The averments of Paragraph 43 are admitted in part and denied in part. It is
admitted that David Sisak was a police officer for the City and acting under color of law and
pursuant to the City policies. The remaining averments of Paragraph 43 are denied.
44. The averments of Paragraph 44 are admitted in part and denied in part. It is
admitted that Rita Leap was a police officer for the City and acting under color of law and
pursuant to the City policies. The remaining averments of Paragraph 44 are denied.
45. The averments of Paragraph 45 are admitted in part and denied in part. It is
admitted that Robert Shaw was a police officer for the City and acting under color of law and
pursuant to the City policies. The remaining averments of Paragraph 45 are denied.
46. The averments of Paragraph 46 are admitted in part and denied in part. It is
admitted that Michael Veith was a police officer for the City and acting under color of law and
pursuant to the City policies. The remaining averments of Paragraph 46 are denied.
47. The averments of Paragraph 47 are directed to Defendants other than answering
Defendants. Therefore, no response is required.
48. The averments of Paragraph 48 are admitted.
49. The averments of Paragraph 49 are admitted in part and denied in part. It is
admitted that there was a reception and dinner at Phipps Conservatory in the Oakland area of
Pittsburgh at 6:00 p.m. on September 24, 2009. The remaining averments of Paragraph 49 are
denied.
50. The averments of Paragraph 50 are admitted in part and denied in part. It is
admitted that a large group of individuals assembled in and around Schenley Plaza. After
reasonable investigation, Defendants are without information sufficient to form a belief as to the
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truth or falsity of the remaining averments of Paragraph 50. The same are therefore denied with
strict proof demanded at trial.
51. The averments of Paragraph 51 are admitted in part and denied in part. It is
admitted that the area in the vicinity of Phipps Conservatory was heavily guarded. It is denied
that the National Guard was present in the area. The remaining averments of Paragraph 51 are
subject to interpretation and thus not capable of being admitted or denied.
52. The averments of Paragraph 52 are denied.
53. The averments of Paragraph 53 are admitted in part and denied in part. It is
admitted that vandalism occurred in the Oakland area. The remaining averments of Paragraph
53 are denied.
54. The averments of Paragraph 54 are admitted.
55. The averments of Paragraph 55 are admitted in part and denied in part. It is
admitted that a large group of people were in Schenley Plaza on September 25, 2009 in the
evening hours, although the number is denied. It is admitted that Hillman Library and the
Cathedral of Learning are part of the University of Pittsburgh Campus.
56. The averments of Paragraph 56 are admitted.
57. The averments of Paragraph 57 are admitted in part and denied in part. It is
admitted that following the concert, a large number of people began assembling in the Plaza.
After reasonable investigation, Defendants are without information sufficient to form a belief as
to the truth or falsity of the remaining averments of Paragraph 57. Strict proof is demanded at
time of trial.
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58. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 58. The same are therefore
denied with strict proof demanded at time of trial.
59. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 59. The same are therefore
denied with strict proof demanded at time of trial.
60. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 60. The same are therefore
denied with strict proof demanded at time of trial.
61. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 61. The same are therefore
denied with strict proof demanded at time of trial.
62. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 62. The same are therefore
denied with strict proof demanded at time of trial.
63. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 63. The same are therefore
denied with strict proof demanded at time of trial.
64. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 64. The same are therefore
denied with strict proof demanded at time of trial.
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65. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 65. The same are therefore
denied with strict proof demanded at time of trial.
66. The averments of Paragraph 66 are admitted.
67. The averments of Paragraph 67 are denied.
68. The averments of Paragraph 68 are denied.
69. The averments of Paragraph 69 are admitted in part and denied in part. It is
admitted that Chief Harper was aware of a flyer. The quoted language from the flyer is denied.
The remaining averments of Paragraph 69 are denied.
70. The averments of paragraph 70 are admitted in part and denied in part. The
number of Mobile Field Forces around the Plaza is denied. The remaining averments of
Paragraph 70 are admitted.
71. The averments of Paragraph 71 are admitted in part and denied in part. It is
admitted that police officers recommended that people leave the Plaza. The remaining
averments of Paragraph 71 are denied.
72. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments regarding what individuals were
specifically doing or who they might be listening to. Therefore, strict proof is demanded at time
trial.
73. The averments of Paragraph 73 are admitted in part and denied in part. It is
admitted that ultimately the police officers moved into position in and around the Plaza. The
remaining averments of Paragraph 73 are denied.
74. The averments of Paragraph 74 are denied.
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75. The averments of Paragraph 75 are admitted.
76. The averments of Paragraph 76 are admitted in part and denied in part. The
specific language of the LRAD is denied. The remaining averments of paragraph 76 are
admitted.
77. The averments of Paragraph 77 are denied.
78. The averments of Paragraph 78 are admitted.
79. The averments of Paragraph 79 are admitted.
80. The averments of Paragraph 80 are denied.
81. The averments of Paragraph 81 are denied.
82. The averments of Paragraph 82 are denied.
83. The averments of Paragraph 83 are denied.
84. The averments of Paragraph 84 are denied.
85. It is denied that police utilized pepper spray at the time alleged in Paragraph 85.
After reasonable investigation, Defendants are without information sufficient to form a belief as
to the truth or falsity of the remaining averments of Paragraph 85. The same are therefore denied
with strict proof demanded at trial.
86. The averments of Paragraph 86 are denied.
87. The averments of Paragraph 87 are denied.
88. The averments of Paragraph 88 are denied.
89. It is specifically denied that police blocked Branders exit from the park. It is
further denied that any mass arrest or police brutality occurred in Oakland the previous night.
After reasonable investigation, Defendants are without information sufficient to form a belief as
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to the truth or falsity of the remaining averments of Paragraph 89. The same are therefore denied
with strict proof demanded at time of trial.
90. It is specifically denied that police refused to allow Jen to leave. After reasonable
investigation, Defendants are without information sufficient to form a belief as to the truth or
falsity of the remaining averments of Paragraph 90. The same are therefore denied with strict
proof demanded at trial.
91. The averments of Paragraph 91 are denied.
92. The averments of Paragraph 92 are denied.
93. The averments of Paragraph 93 are denied.
94. The averments of Paragraph 94 are denied.
95. The averments of Paragraph 95 are denied.
96. The averments of Paragraph 96 are denied.
97. The averments of Paragraph 97 are denied.
98. The averments of Paragraph 98 are admitted in part and denied in part. It is
admitted that at one point officers announced that all the individuals who had refused to leave the
lawn area around the Cathedral of Learning were under arrest and ordered to lie face down on
the ground. The averments of Paragraph 98 to the extent that they set an accurate timeline are
denied.
99. The averments of Paragraph 99 are denied.
100. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 100. The same are therefore
denied with strict proof demanded at trial.
101. The averments of Paragraph 101 are admitted.
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102. The averments of Paragraph 102 are denied.
103. The averments of Paragraph 103 are denied.
104. After reasonable investigation, Defendants are without sufficient information to
form a belief as to the truth or falsity of the averments of Paragraph 104. Defendant's attempts to
determine the truth or falsity of the averments has been substantially hampered by the fact that a
number of Plaintiffs have caused their criminal records to be expunged. Defendants therefore
deny the averments of paragraph 104 and demand strict proof at time of trial.
105. The averments of Paragraph 105 are denied.
106. After reasonable investigation, Defendants are without sufficient information to
form a belief as to the truth or falsity of the averments of Paragraph 106. Defendant's attempts to
determine the truth or falsity of the averments has been substantially hampered by the fact that a
number of Plaintiffs have caused their criminal records to be expunged. Defendants therefore
deny the averments of Paragraph 106 and demand strict proof at time of trial.
107. After reasonable investigation, Defendants are without sufficient information to
form a belief as to the truth or falsity of the averments of Paragraph 107. Defendant's attempts to
determine the truth or falsity of the averments has been substantially hampered by the fact that a
number of Plaintiffs have caused their criminal records to be expunged. Defendants therefore
deny the averments of Paragraph 107 and demand strict proof at time of trial.
108. After reasonable investigation, Defendants are without sufficient information to
form a belief as to the truth or falsity of the averments of Paragraph 108. Defendant's attempts to
determine the truth or falsity of the averments has been substantially hampered by the fact that a
number of Plaintiffs have caused their criminal records to be expunged. Defendants therefore
deny the averments of Paragraph 108 and demand strict proof at time of trial.
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109. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 109. The same are therefore
denied with strict proof demanded at trial.
110. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 110. The same are therefore
denied with strict proof demanded at trial.
111. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 111. The same are therefore
denied with strict proof demanded at trial.
112. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 112. The same are therefore
denied with strict proof demanded at trial.
113. The averments of Paragraph 113 are denied.
114. The averments of Paragraph 114 are admitted.
115. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 115. The same are therefore
denied with strict proof demanded at trial. It is specifically denied that any police officer pushed
Mr. Kantar's face into the ground, pulled his hair, punched him several times in the back of the
head or hit him with a baton.
116. The averments of Paragraph 116 are admitted in part and denied in part. It is
admitted that Ms. Harper was hiding. The remaining averments of Paragraph 116 are denied.
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117. The averments of Paragraph 117 are admitted in part and denied in part. It is
admitted that officers picked her up off the ground and escorted her to a waiting van. The
remaining averments of Paragraph 117 are denied.
118. The averments of Paragraph 118 are admitted.
119. The averments of Paragraph 119 are admitted insofar as both Plaintiff were
charged with these offenses. By way of further response, there were additional charges against
both these Plaintiffs.
120. The averments of Paragraph 120 are denied.
121. The averments of Paragraph 121 are denied.
122. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 122. The same are therefore
denied with strict proof demanded at trial.
123. The averments of Paragraph 123 are denied.
124. The averments of Paragraph 124 are admitted in part and denied in part. It is
admitted that Mr. Bathelmes was seated on the curb on the north side of Fifth Avenue until the
mobile booking team could process him. After reasonable investigation, Defendants are without
information sufficient to form a belief as to the truth or falsity of the remaining averments of
Paragraph 124. The same are therefore denied with strict proof demanded at trial.
125. After reasonable investigation, Defendants are without sufficient information to
form a belief as to the truth or falsity of the averments of Paragraph 125. Defendant's attempts to
determine the truth or falsity of the averments has been substantially hampered by the fact that a
Plaintiff caused his criminal record to be expunged. Defendants therefore deny the averments of
Paragraph 107 and demand strict proof at time of trial.
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126. After reasonable investigation, Defendants are without sufficient information to
form a belief as to the truth or falsity of the averments of Paragraph 126. Defendant's attempts to
determine the truth or falsity of the averments has been substantially hampered by the fact that
Plaintiff caused his criminal records to be expunged. Defendants therefore deny the averments
of Paragraph 126 and demand strict proof at time of trial.
127. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 127. The same are therefore
denied with strict proof demanded at trial.
128. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 128. The same are therefore
denied with strict proof demanded at trial.
129. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 129. The same are therefore
denied with strict proof demanded at trial.
130. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 130. The same are therefore
denied with strict proof demanded at trial.
131. The averments of Paragraph 131 are denied.
132. The averments of Paragraph 132 are denied.
133. The averments of Paragraph 133 are admitted.
134. The averments of Paragraph 134 are admitted.
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135. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 135. The same are therefore
denied with strict proof demanded at trial.
136. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 136. The same are therefore
denied with strict proof demanded at trial.
137. The averments of Paragraph 137 are denied.
138. The averments of Paragraph 138 are admitted in part and denied in part. It is
admitted that Plaintiff was handcuffed and knelt in front of officers for a photograph. It is
specifically denied that he was forced to do so against his will.
139. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 139. The same are therefore
denied with strict proof demanded at trial.
140. The averments of Paragraph 140 are admitted.
141. The averments of Paragraph 141 are admitted.
142. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 142. The same are therefore
denied with strict proof demanded at trial. By way of further response, it is specifically denied
that the news broadcast information that police officers were interfering in students' efforts to
hold a demonstration in Schenley Plaza.
143. The averments of Paragraph 143 are denied.
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144. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 144. The same are therefore
denied with strict proof demanded at trial.
145. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 145. The same are therefore
denied with strict proof demanded at trial.
146. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 146. The same are therefore
denied with strict proof demanded at trial.
147. The averments of Paragraph 147 are admitted in part and denied in part. It is
admitted that Plaintiff Munley was shot at with pepper ball rounds. The description of pepper
balls similar to paint balls filled with OC vapor is further admitted, as are the injuries and effects
of being struck with a pepper ball. The remaining averments of Paragraph 147 are denied.
148. The averments of Paragraph 148 are admitted in part and denied in part. It is
admitted that Plaintiff Munley was placed in plastic handcuffs and that his shirt was removed
because of contamination. It is denied that he spent the night in an outdoor courtyard in the rain.
149. The averments of Paragraph 149 are admitted. By way of further response,
Plaintiff was charged with another criminal offense.
150. The averments of Paragraph 150 are denied to the extent that Plaintiff accepted a
plea of guilty to a summary offense.
151. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 151. The same are therefore
denied with strict proof demanded at trial.
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152. The averments of Paragraph 152 are denied.
153. The averments of Paragraph 153 are denied.
154. The averments of Paragraph 154 are denied.
155. The averments of Paragraph 155 are denied.
156. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 156. The same are therefore
denied with strict proof demanded at trial.
157. After reasonable investigation, Defendants are without sufficient information to
form a belief as to the truth or falsity of the averments of Paragraph 157. Defendant's attempts to
determine the truth or falsity of the averments has been substantially hampered by the fact that
Plaintiff caused his criminal records to be expunged. Defendants therefore deny the averments
of Paragraph 157 and demand strict proof at time of trial.
158. After reasonable investigation, Defendants are without sufficient information to
form a belief as to the truth or falsity of the averments of Paragraph 158. Defendant's attempts to
determine the truth or falsity of the averments has been substantially hampered by the fact that
Plaintiff caused his criminal records to be expunged. Defendants therefore deny the averments
of Paragraph 158 and demand strict proof at time of trial.
159. The averments of Paragraph 159 are denied.
160. The averments of Paragraph 160 are admitted.
161. The averments of Paragraph 161 are admitted.
162. After reasonable investigation, Defendants are without information sufficient to
form a belie as to the truth or falsity of the averments of Paragraph 162. The same are therefore
denied with strict proof demanded at trial.
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163. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 163. The same are therefore
denied with strict proof demanded at trial.
164. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 164. The same are therefore
denied with strict proof demanded at trial.
165. The averments of Paragraph 165 are denied.
166. The averments of Paragraph 166 are denied.
167. The averments of Paragraph 167 are denied.
168. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 168. The same are therefore
denied with strict proof demanded at trial.
169. The averments of Paragraph 169 are denied.
170. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 170. The same are therefore
denied with strict proof demanded at trial.
171. The averments of Paragraph 171 are admitted in part and denied in part. It is
admitted that arrested individuals were photographed at SCI Pittsburgh. The remaining
averments of Paragraph 171 are denied.
172. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 172. The same are therefore
denied with strict proof demanded at trial.
173. The averments of Paragraph 173 are denied.
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174. It is admitted that SCI Pittsburgh is located in an industrial area on the North Side
of Pittsburgh. As for the remaining averments of paragraph 174, after reasonable investigation,
Defendants are without information sufficient to form a belief as to their truth or falsity. The
same are therefore denied with strict proof demanded at trial.
175. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 175. The same are therefore
denied with strict proof demanded at trial.
176. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 176. The same are therefore
denied with strict proof demanded at trial.
177. The averments of Paragraph 177 are admitted.
178. The averments of Paragraph 178 are admitted.
179. The averments of Paragraph 179 are admitted in part and denied in part. It is
specifically denied that Plaintiff Brander was handcuffed for more than 12 hours. The remaining
averments of Paragraph 179 are admitted.
180. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 180. The same are therefore
denied with strict proof demanded at trial.
181. After reasonable investigation, Defendants are without information sufficient to
form a belief as to the truth or falsity of the averments of Paragraph 181. The same are therefore
denied with strict proof demanded at trial.
182. The averments of Paragraph 182 are denied.
183. The averments of Paragraph 183 are denied.
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COUNT I
184. Defendants incorporate herein the responses to Paragraphs 1 through 183 as if
fully set forth at length.
185. Paragraph 185 constitutes conclusions of law to which no response is required.
To the extent a response is required, and in the context of the conduct of Plaintiffs in this matter,
the same is denied.
186. The averments of Paragraph 186 are denied.
COUNT II
187. Defendants incorporate herein the responses to Paragraphs 1 through 186 as if
fully set forth at length.
188. Paragraph 188 constitutes conclusions of law to which no response is required.
To the extent a response is required, and in the context of the conduct of Plaintiffs in this matter,
the same is denied.
189. The averments of Paragraph 189 are denied.
COUNT III
190. Defendants incorporate herein the responses to Paragraph 1 through 189 as if fully
set forth at length.
191. The averments of Paragraph 191 constitute conclusions of law to which no
response is required. To the extent a response is required, the same is denied. By way of further
answer, Plaintiffs failed to join as an indispensible party, Commonwealth of Pennsylvania, as
required by both state and federal law.
COUNT IV
192. Defendants incorporate herein the responses to Paragraph 1 through 191 as if fully
set forth at length.
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193. The averments of Paragraph 193 constitute conclusions of law to which no
response is required. To the extent a response is required, the same is denied. By way of further
answer, Plaintiffs failed to join as an indispensible party, Commonwealth of Pennsylvania, as
required by both state and federal law.
COUNT V
194. Defendants incorporate herein the responses to Paragraph 1 through 193 as if fully
set forth at length.
195. The averments of Paragraph 195 constitute conclusions of law to which no
response is required. To the extent a response is required, the same are denied.
COUNT VI
196. Defendants incorporate herein the responses to Paragraph 1 through 195 as if fully
set forth at length.
197. The averments of Paragraph 197 are denied.
COUNT VII
198. Defendants incorporate herein the responses to Paragraph 1 through 197 as if fully
set forth at length.
199. The averments of Paragraph 199 constitute conclusions of law to which no
response is required. To the extent a response is required, the same are denied.
PRAYER FOR RELIEF
Plaintiffs are not entitled to any of the relief requested in the Pray for Relief, including
subparagraphs (a) through (e).
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AFFIRMATIVE DEFENSES
First Affirmative Defense
Arrests made by police officers at all relevant times were upon probable cause and
fulfilled the requirements of 18 Pa C.S. § 5502 and any other offense with which each Plaintiff
was charged.
Second Affirmative Defense
The individual Police Officer Defendants assert that they are entitled to qualified
immunity as articulated in Harlowe v. Fitzgerald¸ 457 U.S. 800 (1982) and subsequent decisions.
At no time did any of the Police Officer Defendants violate clearly established law and at all
times concerned with this litigation acted in a manner which was proper, reasonable, lawful and
in the exercise of good faith and, as such, enjoy not only qualified immunity, but a right not to go
to trial as articulated in Mitchell v Forsythe, 472 U.S. 511, 572 (1985).
Third Affirmative Defense
Plaintiffs' alleged injuries, sufferings and/or damages, if any, were caused by their own
willful, malicious and criminal misconduct and/or their own negligence, carelessness and
reckless disregard for the rights of others and not by any civil rights violations.
Fourth Affirmative Defense
Certain of Plaintiffs obtained Court orders for the expungement of all records pertaining
to their arrests. As such, Defendants have been deprived of the ability to obtain critical
documents to formulate responses to averments in the Complaint. Under these circumstances,
police officers who arrested these individuals have also been deprived of evidence necessary to
defend against these claims.
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Fifth Affirmative Defense
Certain of Plaintiffs agreed to complete a term of community service as determined by
the Court before the criminal charges against them were dismissed. Therefore, Plaintiffs under
these circumstances cannot claim that the outcome of the criminal charges brought against them
had a favorable outcome.
Sixth Affirmative Defense
Most of the named Defendant Police Officers were engaged in the act of serving as
booking officers and therefore did not arrest Plaintiffs.
Seventh Affirmative Defense
Plaintiffs have failed to join and indispensible party under F.R.C.P. 19. Counts III and IV
of the Complaint seek to invalidate the State Statute which, under 28 U.S.C. § 2403(b) and
F.R.C.P. 5.1, requires that Plaintiffs and the Court notify the Commonwealth of Pennsylvania
and certify on the record that such notification has been provided to the Commonwealth of
Pennsylvania. Therefore, the Court is without jurisdiction to enter a determination of the
constitutionality of 18 Pa. C.S. § 5502. It is not the responsibility under the Federal Statute or
under the Rules of Civil Procedure for Defendants to make such notification.
Eighth Affirmative Defense
Defendants assert herein all defenses available to them under the Civil Rights Act of
1871.
WHEREFORE, Defendants, CITY OF PITTSBURGH, NATHAN HARPER, PAUL
DONALDSON, LT. ED TRAPP, TIMOTHY DEARY, THOMAS PAULEY, ALISA
DUNCAN, DORTHEA LEFTWICH, DONALD SNIDER, RICHARD HOWE, LARRY
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CRAWFORD, DOUGLAS HUGNEY, WILLIAM FRIBURGER, MICHELLE MCHENRY,
DAVID SISAK, RITA LEAP, ROBERT SHAW and MICHAEL VEITH, demand judgment in
their favor and against Plaintiffs, together with reimbursement of all costs and counsel fees.
Respectfully submitted,
CITY OF PITTSBURGH LAW DEPARTMENT
s/ John F. Doherty JOHN F. DOHERTY, ESQUIREPA ID #56418DANIEL D. REGAN, ESQUIREPA ID #89141313 City-County Building414 Grant StreetPittsburgh, PA 15219(412) 255-2010(412) 255-2285/[email protected]@city.pittsburgh.pa.usAttorneys for Defendant, City of Pittsburgh, only
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN
s/ Paul D. Krepps PAUL D. KREPPS, ESQUIRE - PA ID #73038REBECCA L. MAGYAR, ESQUIRE-PA ID #207022TERESA O. SIRIANNI, ESQUIRE- PA ID #90472Marshall, Dennehey, Warner, Coleman & GogginUS Steel Tower, Suite 2900600 Grant StreetPittsburgh, PA 15219(412) 803-1140(412) 803-1188/[email protected]@[email protected] for Defendants, City of Pittsburgh, Nathan Harper, Paul Donaldson, Lt. Ed Trapp, Timothy Deary, Thomas Pauley, Alisa Duncan, Dorthea Leftwich, Donald Snider, Richard Howe, Larry Crawford, Douglas Hugney, William Friburger, Michelle Mchenry, David Sisak, Rita Leap, Robert Shaw and Michael Veith
12/1143341.v1
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