Kerusenko v. New Jersey

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
11-18-2004
Kerusenko v. New Jersey
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3556
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Kerusenko v. New Jersey" (2004). 2004 Decisions. Paper 132.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/132
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 03-3556
____________
YAKOV KERUSENKO, Husband and Father;
GALINA KERUSENKO, Wife and Mother;
SERGEY KERUSENKO, Son and Brother;
ANATOLY KERUSENKO, Son and Brother;
TANIA KERUSENKO, Daughter and Sister,
Appellants
v.
THE STATE OF NEW JERSEY; NEW JERSEY STATE POLICE;
CARL A. WILLIAMS, JR.; SUPERINTENDENT COLONEL;
NUMEROUS JOHN DOE; JANE DOE, FICTITIOUSLY NAM ED
INDIVIDUAL LAW ENFORCEMENT OFFICERS
OF STATE POLICE; ADAM SHUBSDA, TPR. I;
ED CENTAR, TRP. I; DAVE MEYER, TRP. I;
JEFF ALGOR, TRP. I; BRIAN MCPHERSON, TRP. I;
PAUL KARAGIAS, TRP. I; T. DREHER, LT.;
V. PARENTI, DET. I; R. TOBOLSKI, DET. I;
W. RIGGINS, DET. I; M. ROW E, DET. I; D. ELWELL, DET. I;
M. PARMENTER, DET. I; A. MERLOCK, DET. I; F. PAPP, DSFC;
W. ROBB, DET. I; E. CZELATKO, DET. I; K. KALTON, DET. I;
L. KINKLE, DET. I; D. SANTIAGO, INV.;
T. BEEBE, DET.; M. CICHOWSKI, SA
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 00-cv-01252)
District Judge: Honorable Joseph H. Rodriguez
____________
Argued October 26, 2004
Before: SCIRICA, Chief Judge, FISHER and BECKER, Circuit Judges.
(Filed: November 18, 2004)
Vincent J. Pancari
Kavesh, Pancari, Tedesco & Pancari
727 Landis Avenue
Vineland, NJ 08360
Anthony J. Fiola (Argued)
311 Landis Avenue
Vineland, NJ 08360
Attorneys for Appellants
Vincent J. Rizzo, Jr. (Argued)
Office of Attorney General of New Jersey
Department of Law & Public Safety
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Daniel F. Dryzga, Jr.
Office of Attorney General of New Jersey
Division of Law
25 Market Street
Trenton, NJ 08625
Attorneys for Appellees
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Appellants Yakov, Galina, Sergey, Anatoly, and Tania Kerusenko (the
“Kerusenkos”) appeal the district court’s order granting summary judgment in favor of
the Appellees V. Parenti and M. Parmenter. Specifically, the Kerusenkos allege that
2
Appellees Parenti and Parmenter were not entitled to the defense of qualified immunity,
and additionally, that the Kerusenkos’ claims were not time-barred by the applicable
statute of limitations. We will affirm the district court’s grant of summary judgment on
the basis of qualified immunity and accordingly, do not reach the statute of limitations
issue.
Because this is an appeal from summary judgment, we view the facts in the light
most favorable to the non-moving party. Farrell v. Planters Lifesavers Co., 206 F.3d
271, 278 (3d Cir. 2000). Nevertheless, as we write only for the parties, we will recite a
minimum of facts. This case, brought under 42 U.S.C. § 1983, arose from the execution
of a search warrant issued in connection with a murder investigation by the New Jersey
State Police. The Kerusenkos allege that the Appellees knowingly violated the
Kerusenkos’ clearly established Fourth Amendment rights and had knowledge of and
acquiesced in the actions of their subordinates in violating these rights pursuant to the
execution of a search warrant. Specifically, the Kerusenkos allege:
[T]he law enforcement officers, under the supervision of [Appellees Parenti
and Parmenter], stayed on the premises for seven and one quarter hours,
during which time they kept a family that they knew to be no more than
victims of circumstance in handcuffs for several hours, in their underwear
in plain sight of each other and of numerous law enforcement officers in
spite of pleas to allow them to be covered. At least one of the officers
insulted Tania Kerusenko. Defendants even left the trash from their lunch.
(Appellants’ Brief at 21.)
3
Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982); see also Torres v. United States, 200 F.3d 179, 184 (3d Cir. 1999); Sharrar v.
Felsing, 128 F.3d 810, 826 (3d Cir. 1997). In order to determine whether an official is
entitled to qualified immunity, the court must answer this threshold inquiry: “Taken in
the light most favorable to the party asserting the injury, do the facts alleged show the
officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201
(2001) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). Assuming this inquiry is
satisfied and a constitutional right has been violated, it must then be determined whether
the right violated was “clearly established.” Id.As to the initial inquiry, viewing the facts in the light most favorable to the non-
moving party, it appears that the Kerusenkos’ Fourth Amendment rights have been
violated. In Leveto v. Lapina, this Court found that an eight hour search conducted
pursuant to an investigation for tax evasion where the plaintiff was detained at his place
of business, restricted in his communication with others during the search, and
interrogated during a period of six hours was unreasonable and amounted to a violation of
the plaintiff’s Fourth Amendment rights.1 258 F.3d 156, 172-73 (3d Cir. 2000).
1
Leveto nonetheless concluded that it was not clearly established that such a
lengthy detention would be unwarranted in a search for evidence and therefore granted
4
Although there are some notable differences between the search executed in Leveto and
that of the Kerusenko residence, the Leveto holding nonetheless suggests that the manner
of execution of the search warrant at the Kerusenko residence was unreasonable and
violative of the Kerusenkos’ Fourth Amendment rights.2
Nevertheless, based upon the timing of the Leveto decision, it does not appear that
it would have been “clear to [the Appellees] that [their] conduct was unlawful.” Saucier,
533 U.S. at 202. The warrant to search the Kerusenko residence was issued and executed
more than two years prior to this Court’s decision in Leveto. (App. 75-79). As a result,
the Appellees Parenti and Parmenter would not have had notice of the Leveto decision
and the unlawfulness of their conduct at the time of the execution of the search warrant.
Nor did the decision of the New Jersey intermediate appellate court in Gurski v. State
Police Department provide notice to the Appellees of the unlawfulness of their conduct in
this case. 576 A.2d 292 (N.J. Super. Ct. App. Div. 1990). In Gurski, the officers
destroyed personal property, used the telephone without permission, “‘frolicked’” on the
lawn, used abusive language, directed sarcastic comments at and frightened the
qualified immunity. 258 F.3d at 173-74 (citing Michigan v. Summers, 452 U.S. 692, 705
(1981)).
2
In Torres, this Court found that the officers’ conduct was reasonable and did not
constitute a Fourth Amendment violation. Though there are many analogies to Torres,
the manner of the search in Torres was less intrusive than in the instant case based on the
duration of the search; the fact that only Torres, the target of the search, was handcuffed;
and the fact that the rest of the family was allowed to get dressed after the home was
secured. 200 F.3d at 192. These factors lead us to distinguish Torres and to find that the
manner of search of the Kerusenko residence constitutes a Fourth Amendment violation.
5
inhabitants of the house, helped themselves to refreshments and dryfired weapons “in full
view of the neighbors.” Id. at 299. Appellees’ conduct here cannot be equated to that of
the officers in Gurski.
As a result, because neither this Court’s Leveto decision nor the New Jersey
court’s Gurksi decision provided notice to the Appellees that their conduct violated the
Kerusenkos’ Fourth Amendment rights, it would not have been “clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S.
at 202. Accordingly, Appellees Parenti and Parmenter are entitled to qualified immunity.
For these reasons, we will affirm the district court’s orders granting summary
judgment to Appellees Parenti and Parmenter.
________________________
6