Opinion
C.A. No. 02C-02-001 HDR
Submitted: September 3, 2002
Decided: November 26, 2002
Upon Defendant Trooper Mark Hawk's Motion for Summary Judgment DENIED
Gabriel G. Atamian, Dover, Delaware, pro se.
Rosemary K. Killian, Esq., Deputy Attorney General, Department of Justice, Wilmington, Delaware, for Trooper Mark Hawk.
ORDER
This 26th day of November, it appears that:
(1) Defendant Trooper Mark Hawk has moved for summary judgment in his favor. Plaintiff filed suit against the State of Delaware, Trooper Hawk, Christiana Hospital, and one of its employees, for an incident which occurred on December 11, 2001. He claims violations of 42 U.S.C. § 1983, the Delaware Constitution, and Delaware Tort Law. The Complaint against the State has been dismissed because it is not a "person" for purposes of any claim under § 1983. In this order I conclude that summary judgment is inappropriate.
(2) While traveling on a DART bus in the early morning of December 11, 2001 to Christiana Hospital, Plaintiff claims that his racial classification was questioned by another passenger, and he was called "an Afghan." The driver of the bus called in a request for police assistance, in which the driver related that a male with a description matching Plaintiff's acted suspiciously before being dropped off at the hospital carrying bags. The driver also reported that the man had said that he hated the government and America. Plaintiff denies saying that but admits that he told the passengers "the Delaware State `machinery' is against him." Upon arrival, Plaintiff entered the hospital for a short time. When he emerged, he was approached by Trooper Hawk, and three members of the Christiana Hospital staff. Hawk, having received the report from the driver, frisked Plaintiff for weapons and found none, requested identification, and checked it by radio. Plaintiff states that Hawk gave the Hospital employees permission to search his bags when the Hospital staff asked Hawk if they could do so. Hawk and the Hospital contend that Plaintiff consented to the search of his bags. At the motion Atamian v. Hawk 02C-02-001 HDR November 26, 2002 hearing before this Court, Plaintiff indicated that Defendant Hawk simply said "yes" when hospital employees asked if they could search his bag. In his affidavit Plaintiff describes Hawk's conduct this way: "After, having searched for weapons on plaintiff and plaintiff's pouch, Officer Hawk did give permission to the security guard of the Christiana Hospital to search on plaintiff's two bags."
(3) Under the doctrine of qualified immunity as explained by the United States Supreme Court in Saucier v. Katz, even if the facts alleged, taken in the light most favorable to the Plaintiff, show that the Defendant's conduct violated a constitutional right, summary judgment based on qualified immunity for a state official is appropriate if the right is not clearly established "in light of the specific context of the case." In other words, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." The relevant, dispositive inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.
533 U.S. 194 (2001).
Id. at 201.
Id. at 202, citing Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Id., citing Wilson v. Layne, 526 U.S. 603, 615 (1999).
(4) Here an investigatory stop under 11 Del. C. § 1902 was appropriate. The material facts of this case concerning the search of Plaintiff's bags and whether the officer knowingly exceeded the scope of his authority under § 1902 are in dispute. This Atamian v. Hawk 02C-02-001 HDR November 26, 2002 Court may not resolve disputed facts summarily. This Court has previously denied a motion for summary judgment against state officials on qualified immunity grounds when from the Plaintiff's version of the facts presented "there may possibly be a claim that the officers' actions were not consistent with clearly established principles of Constitutional law." Because that also may be the case here if Plaintiff's version of the facts and the inferences to be drawn from them are accepted, I conclude that summary judgment is inappropriate.
Dickens v. Brewington-Carr, 1999 Del. Super. LEXIS 503, Quillen, J. (Oct. 8, 1999).
See Hicks v. State, 631 A.2d 6, 12 (Del. 1993) ("In the context of an investigative detention, an officer may not continue a search of the defendant once the officer learns that the defendant is not armed.")
NOW, THEREFORE, IT IS ORDERED that Defendant Trooper Mark Hawk's motion for summary judgment is DENIED.
President Judge cmh oc: Prothonotary xc: Order distribution James Drnec, Esq.