g20 pittsburgh aclu civil litigation - answer to complaint by city

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,

Case 2:10-cv-01246-NBF Document 19 Filed 12/22/10 of 29

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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.









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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.


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.


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.


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.


admitted that Thomas Pauley was a police officer for the City and acting under color of law and



admitted that Alisa Duncan was a police officer for the City and acting under color of law and



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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.


admitted that Donald Snider was a police officer for the City and acting under color of law and



admitted that Richard Howe was a police officer for the City and acting under color of law and



admitted that Larry Crawford was a police officer for the City and acting under color of law and



admitted that Douglas Hugney was a police officer for the City and acting under color of law and



admitted that William Friburger was a police officer for the City and acting under color of law



admitted that Michelle McHenry was a police officer for the City and acting under color of law



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admitted that David Sisak was a police officer for the City and acting under color of law and



admitted that Rita Leap was a police officer for the City and acting under color of law and



admitted that Robert Shaw was a police officer for the City and acting under color of law and



admitted that Michael Veith was a police officer for the City and acting under color of law and


47. The averments of Paragraph 47 are directed to Defendants other than answering

Defendants. Therefore, no response is required.



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.


admitted that a large group of individuals assembled in and around Schenley Plaza. After



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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.


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.


admitted that vandalism occurred in the Oakland area. The remaining averments of Paragraph

53 are denied.



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.



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.




















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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.


admitted that police officers recommended that people leave the Plaza. The remaining

averments of Paragraph 71 are denied.


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.


admitted that ultimately the police officers moved into position in and around the Plaza. The

remaining averments of Paragraph 73 are denied.



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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.









85. It is denied that police utilized pepper spray at the time alleged in Paragraph 85.


to the truth or falsity of the remaining averments of Paragraph 85. The same are therefore denied

with strict proof demanded at trial.




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.



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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.









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.




denied with strict proof demanded at trial.



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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.






deny the averments of Paragraph 106 and demand strict proof at time of trial.












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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.


admitted that Ms. Harper was hiding. The remaining averments of Paragraph 116 are denied.


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admitted that officers picked her up off the ground and escorted her to a waiting van. The

remaining averments of Paragraph 117 are denied.


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.








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.




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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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.


















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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.








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.



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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.


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.





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form a belie as to the truth or falsity of the averments of Paragraph 162. The same are therefore



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admitted that arrested individuals were photographed at SCI Pittsburgh. The remaining

averments of Paragraph 171 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.










specifically denied that Plaintiff Brander was handcuffed for more than 12 hours. The remaining

averments of Paragraph 179 are admitted.










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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.


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.


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




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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




response is required. To the extent a response is required, the same are denied.

COUNT VI




COUNT VII




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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