Archives for posts with tag: guns


CIVIL NO. 3:12-CV-01065


This case is decided July 12, 2012 by recommendation of Magistrate Judge J. Andrew Smyser.
That recommendation was then adopted by order of District Judge A. Richard Caputo.
Then on appeal to the Third Circuit, per curiam opinion before Circuit Judges Scirica, Hardiman and Greenaway.

All three of these opinion make reference to the “ninja”, an allegation that this words as name-calling was defamatory.

From Judge Smyser’s version of the facts:

The plaintiff commenced this action by filing a complaint and an application to proceed in forma pauperis. The complaint named Luzerne County as the defendant. We granted the plaintiff’s application for leave to proceed in forma pauperis. After reviewing the complaint in accordance with 28 U.S.C. § 1915(e)(2), we concluded that it failed to state a claim upon which relief may be granted. We granted the plaintiff leave to file an amended complaint.

The plaintiff filed an amended complaint. The defendants are: 1) Patrolman Anthony Calabro; 2) Patrolman Jessica Bartalotta; 3) Chief Paul Porfirio; and 4) Judge David W. Lupas. The plaintiff alleges the following facts in his amended complaint.

The plaintiff told defendant Calabro that he wanted to file charges against Mark Davenport for making terroristic threats and shooting his house, his car, and the West Pittston pool with a BB gun. Defendant Bartalotta asked the plaintiff about his firearms. The plaintiff told her that his firearms had nothing to do with filing charges against Davenport, but he offered to show her his license to carry the firearms. She told him that he could lose his guns one of these days. Defendants Calabro and Bartalotta refused to file charges against Davenport. The plaintiff then called defendant Porfirio to complain about defendants Calabro and Bartalotta. Defendant Porfirio told the plaintiff that there was nothing that he could do and that if the plaintiff sued Davenport bad things would happen.

Months later the plaintiff reported that Charles Hughes Jr. had committed a crime, but the plaintiff was falsely accused of the crime that he had reported. Defendant Calabro released Hughes, who was under the influence of drugs and alcohol and who had a gun. Defendant Bartalotta told the plaintiff that she was not going to process him because she did not like him. Defendant Porfirio then started to process the plaintiff. He threatened the plaintiff and told him to put his hat and face mask on for his mug shot. He also told an FBI agent that the plaintiff was a ninja, thereby defaming his character. Although the plaintiff wished to remain silent and to have a lawyer, defendant Calabro completed a police report and made the plaintiff sign it.

Defendant Lupas dismissed the plaintiff’s Rule 600 motion. During a court proceeding, he allowed everyone to speak except the plaintiff and he refused to let the plaintiff see a doctor.

The plaintiff is seeking compensatory damages, dismissal of his criminal charges, the return of his firearms, and restoration of his gun permit.

And in discussion:

Although the plaintiff seeks return of his firearms, he does not allege that the named defendants seized his firearms. Nor does he allege anything regarding the circumstances of any seizure of his firearms.

The plaintiff is seeking to hold defendant Porfirio liable for making him put his hat and facemask on for his mug shots. But he has not alleged how that violated his rights.

The plaintiff claims that defendant Porfirio’s statement to an FBI agent that the plaintiff is a ninja defamed his character. It is doubtful that such a statement could be seen as defamatory. But, even assuming for the sake of argument that the statement was defamatory, it was not a violation of the plaintiff’s constitutional rights.

The plaintiff claims that defendant Calabro prepared a police report and made him sign it even though he had wished to remain silent and to have a lawyer. The plaintiff has not alleged that any statements in the police report were used against him during a trial. Thus, he fails to state a claim upon which relief may be granted. See Renda v. King, 347 F.3d 550, 552 (3d Cir. 2003)(holding that a plaintiff may not base a § 1983 claim on the mere fact that police questioned her in custody without providing Miranda warnings when there is no claim that the plaintiff’s answers were used against her at trial).

This Magistrate Judge recommendation for dismissal was adopted by District Judge A. Richard Caputo who wrote in opinion October 3, 2012:

Months later, Mr. Brown reported a crime that Charles Hughes, Jr. allegedly committed, but Mr. Brown was falsely accused of the crime. Defendant Calabro then discriminated against Plaintiff and released Mr. Hughes while he was under the influence of alcohol and possessed a gun. Plaintiff was then told by Defendant Bartalotta that he would not be processed because she did not like him. Defendant Porfirio then started to process Mr. Brown, but he was required to wear a hat and face mask for his mug shot. Defendant Porfirio also told an FBI agent that Mr. Brown was a ninja. Additionally, Mr. Brown wished to exercise his right to remain silent, but Defendant Calabro completed a police report and required Plaintiff to sign it.


Magistrate Judge Smyser also concludes that Mr. Brown’s claim seeking return of his firearm should be dismissed because he fails to allege that the named Defendants seized his firearms “nor does he allege anything regarding the circumstances of any seizure of his firearms.” (Id. at 8.) Additionally, the Magistrate Judge recommends dismissal of the claims against Defendant Porfirio because Plaintiff does not explain how being required to wear a hat and facemask during a mug shot violated his constitutional rights. Additionally, the Magistrate Judge concludes that Defendant’s Porfirio’s alleged statement that Plaintiff was a ninja did not amount to a constitutional violation. (Id.)

On subsequent appeal to the Third Circuit, the unanimous three judge panel writes:

Because the appeal presents no substantial question, we will summarily affirm the District Court’s order.


In the complaint, as amended, he claimed that the defendants – three Luzerne County police officers and one Court of Common Pleas judge – committed various forms of alleged misconduct, including: failing to arrest his neighbor for shooting a BB gun at Brown’s house; failing to arrest a driver for driving while intoxicated; defaming Brown by referring to him as a “ninja“; filing a police statement on Brown’s behalf under false pretenses; and prosecuting Brown for a crime committed by someone else.

and specific to the defamation claim:

[D]efamation is actionable under 42 U.S.C. § 1983 only if it occurs in the course of or is accompanied by a change or extinguishment of a right or status guaranteed by state law or the Constitution.” Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir. 1989) (citing Paul v. Davis, 424 U.S. 693, 701-12, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976)); see also Sturm v. Clark, 835 F.2d 1009, 1012 (3d Cir. 1987) (“Absent the alteration or extinguishment of a more tangible interest, injury to reputation is actionable only under state defamation law.”) (internal citation omitted). Here, Brown alleged only that Defendant Porfiro referred to him as a ninja. Brown did not allege that he suffered the extinguishment of a right or status guaranteed by state law or the Constitution, and has not stated a civil rights action for defamation.

This is a petition for writ of habeas corpus for a convicted attempted murder in California. Petitioner was sentenced “to state prison for life with the possibility of parole, plus 25 years to life plus a consecutive five years”. Petition for habeas is denied. This crime was a gang-related shooting. One gang member, “Hankie”, is described wearing a hooded sweatshirt and bandana: “ninja style”.

ninja style hoodie bandana

WILLIAM T. TUCKER, Petitioner,
MATTHEW CATE, Secretary, Respondents.

Civil No. 10-CV-2272-BGS


Decided June 12, 2012 by U.S. Magistrate Judge Bernard G. Skomal:

Quotes the facts from the California Court of Appeal, Fourth District, Division One:

At around 7:46 p.m. on October 3, 2005, the shooting victim in this case, Jerry Wright Jr. (Wright), was sitting on the stairs near his apartment in the Bay Vista Apartment complex on Logan Avenue in San Diego. The Lincoln Park street gang claimed Lincoln Park—the area where the Bay Vista Apartments are located in southeastern San Diego [footnote omitted] as their territory, and many members of that gang lived in that apartment complex. Although the Lincoln Park and O’Farrell gang were both affiliated with the Bloods, they had been rivals for over a decade. Although Wright did not claim membership in any street gang, his brother had been a member of the O’Farrell Park gang. [footnote omitted] Tucker is a documented member of the Lincoln Park gang, and his gang moniker was “Finny Boy.”


“Hankie”—identified at trial as Scott by Scott’s girlfriend—who was falling and stumbling, and making noise because he hit a gate. Scott was wearing a black hooded sweatshirt and a green bandanna over the lower portion of his fact, “Ninja style” with just the eyes showing. Scott, whom Wright had also seen on prior occasions, was one of the males Wright had seen in the group earlier that evening. Scott was stooped over behind Tucker and making “trembling” noises. He had shot himself in the upper buttocks and down through his front left leg in the groin area.

A man with a history bipolar episodes has a breakdown, threatens his sister and father, the police are called and the man says he killed a pimp and so the police sweep the house and confiscate a whole bunch of guns and knives. Some of this stuff belongs to the father. But the father doesn’t get involved in the criminal proceedings and so he loses his chance to claim his rights to the guns and/or their sale proceeds.

EDWARD A. BARSCH, Plaintiff,
MICHAEL O’TOOLE, et al., Defendants.

No. C 07-00615 SI
2007 U.S. Dist. LEXIS 80648

Decided October 31, 2007, in Opinion by District Judge Susan Illson:

Pro se plaintiff Edward Barsch is the father of Jean and Wayne Barsch. On January 31, 2006, Jean contacted the Hayward Police Department (HPD) and told the police that her brother, Wayne, had threatened to kill her. Complaint P 19; see also Luevano Decl. Ex. A (Hayward Police Department reports). A statement signed by Jean Barsch for the Hayward Police Department states,

I have been storing my brother, Wayne’s guns since about 1997. Wayne was 5150’d and the guns were confiscated from him. Wayne has been calling me over the years, harassing me about wanting the guns back. I finally got tired of Wayne calling me and threatening me over the guns so on Sunday, 01-29-2006, I took all of the guns to my dad’s house in Hayward. I did not want to deal with Wayne anymore.

In the past, Wayne has made threats to slice an apple on my mother’s throat with the Samurai sword that I had in storage. Wayne wanted to prove that he is a true Ninja. I knew I would never give him the sword because I did not feel it was safe to do so. The sword is actually my father’s property. Wayne thinks my father gave it to him, but he never did.

The police arrest Wayne, he tells them a bizarre (apparently fictional) story about how he killed a pimp the night before, the police search Wayne’s home and confiscate a lot of weapons.

Wayne was criminally prosecuted for possession of assault weapons, criminal threats, violation of a court order, and being a convicted felon in possession of a firearm. See May 4, 2007 Hom Decl. Ex. B at 000063-73. Following his conviction, the seized weapons were sold or destroyed pursuant to court orders issued by the Alameda Superior Court. Id. at 000074-85. The complaint alleges that at the time of the sale, the “estimated value” of the weapons collection was more than $ 30,000, but that “proceeds from the police sale as returned to Wayne Barsch was $ 4714.” Complaint at 6:30-31

This case is after the criminal case and is filed by the Wayne’s father regarding those weapons.

Plaintiff filed this lawsuit on January 30, 2007, alleging claims under 42 U.S.C. § 1983 for violations of the First, Second, Fourth, and Fifth Amendments of the United States Constitution, and various claims under California law. 5 Plaintiff has sued eleven Hayward Police Department officers, the Hayward City Attorney, the Alameda County District Attorney, and the Alameda County Assistant District Attorney. Under his Fourth Amendment claim, plaintiff challenges the warrantless search of his residence, alleging that he never gave police permission to enter his home (contrary to the statement in the Hayward Police Department Incident Report), and also that “[i]f indeed there was a dead whore or pimp in plaintiff’s house then there is no time exigency and the police would have had sufficient time to get a legitimate search warrant and act legally.” Id. at 9:24-26. Plaintiff also alleges that when the police officers were in his home confiscating weapons, he requested an inventory of the seized property, and that officers refused his request. Id. at 5:28-29.

The Court dismisses claims under the Fourth amendments and finding no collateral estoppel issue,

the Court finds it necessary to reach the merits of plaintiff’s due process claim. The Court directs the parties to provide supplemental briefs, with supporting declarations and evidence as is appropriate, regarding whether the procedures followed by defendants violated the Due Process Clause of the Fourteenth Amendment, including whether plaintiff had an opportunity to be heard regarding his claim that he owned some of the seized weapons. See generally Zimmerman v. City of Oakland, 255 F.3d 734 (9th Cir. 2001); Conner v. City of Santa Ana, 897 F.2d 1487 (9th Cir. 1990).

After supplemental briefs, the plaintiff lost, November 26, 2007. And again later on appeal to the Ninth Circuit, before Circuit Judges Beezer, Fenandez and Fletcher, February 18, 2009:

The district court correctly determined that Barsch’s Fourth Amendment rights were not violated when police officers entered his house in conducting a protective sweep based on reports of multiple guns on this premises in the possession of Barsch’s bipolar son, who reportedly was not taking his medication, making death threats, and saying that he had stabbed someone the night before. See Maryland v. Buie, 494 U.S. 325, 327 (1990) (holding that officers are not required to obtain a warrant for a protective sweep if it is “a quick and limited search of the premises” and done to protect the safety of the officers and others).

The district court also correctly determined that Barsch’s Fourteenth Amendment due process rights were not violated by the sale/destruction of the weapons found in his house, because Barsch knew that the weapons were seized in connection with his son’s criminal case, that they were subject to being sold or destroyed, and yet he failed to intervene in his son’s criminal proceedings to explain any claim that he had to the seized weapons. See Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 983 (9th Cir. 1998) (“The base requirement of the Due Process Clause is that a person deprived of property be given an opportunity to be heard at a meaningful time and in a meaningful manner.” (citation and internal quotations omitted)).

Writ of cert to the Supreme Court denied.

See also this 2009 article Gun Collection Confiscated that claims the father is an 82 year old world war 2 veteran who lost a very valuable custom rifle in this incident and feels disillusioned by an intrusive police search based on his son’s fabricated story of a “dead prostitute”. It says Wayne did seven months and was released.