ALVARADO v. CITY OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FELISHATAY ALVARADO : CIVIL ACTION

:

v. : NO. 22-3763

:

CITY OF PHILADELPHIA, et al. :

MEMORANDUM

MURPHY, J. February 27, 2024

The Fourth Amendment protects people from unreasonable searches and seizures. That’s

why the police usually need a warrant to enter your home, and need to announce their presence

before breaking down your door. But the law does not — and cannot — demand perfection.

Courts often consider whether the mistakes of police officers fall within the margin of error seen

as reasonable.

In this case, police officers aimed to execute a valid warrant to arrest someone and search

their apartment, which was on the second floor of a two-unit building. The door to the second-

floor apartment was in the rear. The officers broke down the front door of the building,

expecting it to lead to some sort of interior common area with stairs leading up. But the door

actually opened directly into Felishatay Alvarado’s first-floor apartment. Wrong apartment,

wrong person. The officers confronted the mostly undressed Ms. Alvarado and her startled pets,

including her service dog, Akuma. Akuma acted aggressively, and one officer shot and killed

him. After clearing the apartment and moving on to execute the warrant through the rear

building entrance, at least one officer held Ms. Alvarado at gunpoint for as long as thirty

minutes. This is her lawsuit against the officers1 and the City of Philadelphia for damages under

the Fourth Amendment.

Defendants move for summary judgment, arguing that the officers’ actions were

appropriate, and even if not, were protected by qualified immunity. We grant the motion in part

and deny it in part. Ms. Alvarado’s Fourth Amendment claim against individual defendants may

proceed to trial based on three theories: (1) that they unlawfully breached and entered her

apartment by unreasonable mistake, (2) that they unlawfully failed to knock and announce before

doing so, and (3) that they unlawfully detained her after realizing they were in the wrong unit.

Her claim against the City may also proceed to trial. But her theory that individual defendants

violated the Fourth Amendment by killing her dog is not viable on the record here, because the

Officer was entitled to defend himself against an admittedly aggressive dog.

I. Factual Background2

On June 3, 2021, two detectives3 from the Philadelphia Police Department obtained arrest

1 The individual defendants named in Ms. Alvarado’s suit are Officers Ashford, Burkitt,

Cerruti, Clark, Fitzpatrick, Hamoy, Sergeant Mellody, Lieutenant Monk, Murray, Quintana,

Riotto, Rivera, Saba, Scott, Song, and certain John Does. Defendant officers Ashford, Scott,

Fitzpatrik, Rivera, Quintana, Riotto, and Cerutti seek dismissal because they were not personally

involved in the relevant events. DI 28 at 17. Ms. Alvarado concedes, so we dismiss them on

that basis. DI 29 at 1 n.1. We refer to the balance — Burkitt, Clark, Hamoy, Mellody, Monk,

Murray, Saba, and Song — collectively as “individual defendants.”

2 We draw these facts from (1) defendants’ statement of material facts admitted or

undisputed in Ms. Alvarado’s opposition to defendants’ summary judgment motion, (2) Ms.

Alvarado’s counterstatement of material facts, and (3) exhibits and record items accompanying

the parties’ briefs.

3 The two detectives, the magistrate judge who issued the warrant, and the probation

officer are not parties. Further, the dispute here concerns the warrant’s execution, not its

validity.

and search warrants for a homicide suspect.4 DI 28-1 ¶ 12; DI 29-1 ¶ 12. The search warrant

defined the premises to be searched as “4664 Torresdale Ave. Phila. Pa. 19123, 2nd floor rear.”

Id. The suspect’s probation officer gave the detectives this address. DI 28-1 ¶¶ 13, 14; DI 29-1

¶ 14. Probation staff were in possession of notes explaining how to access the “2nd floor rear”

apartment from outside the building, but nobody asked them for that information. DI 29-2 at

187-94, 218-19, 221 (ECF). Next, the detectives provided the warrant to the individual

defendants (members of a “SWAT unit”) for execution.5 And then two members of the unit,

defendants Sergeant Mellody and Officer Clark, conducted reconnaissance.6

Early the next morning, the individual defendants arrived at 4664 Torresdale Ave. to

execute the search warrant. DI 28-1 ¶ 18; DI 29-1 ¶ 18. 4664 Torresdale Ave. is a two-story

apartment building. DI 28-1 ¶ 4; DI 29-1 ¶ 4. The building has two doors — one at the front of

the building and one at the back. DI 28-1 ¶ 5; DI 29-1 ¶ 5. The front of the building faces

Torresdale Ave., while the back faces an unnamed “cul-de-sac-type alley” accessible via

Margaret Street. DI 28-1 ¶¶ 5, 10; DI 29-1 ¶¶ 5, 10. The front door bears the building’s street

number (“4664”), while two mailboxes labeled “1” and “2” respectively hang several inches to

the left of the door on the building’s front wall. DI 28-4 at 1 (ECF); DI 28-1 ¶¶ 6-7; DI 29-1

4 To protect an ongoing criminal investigation, the parties agreed to keep the homicide

suspect’s identity confidential. DI 17. The suspect’s identity is not material to our decision, and

the parties have redacted it from their filings. DI 28 at 2 n.2.

5 DI 28-1 ¶ 15; DI 29-1 ¶ 15. A SWAT unit executes search warrants under

circumstances that present “increased risk,” like where a named suspect may be armed. DI 28-1

¶¶ 15-16; DI 29-1 ¶¶ 15-16.

6 DI 28-1 ¶ 17. Ms. Alvarado’s response to defendants’ statement of facts does not

explicitly dispute that the officers conducted reconnaissance, but instead characterizes “any

‘reconnaissance’ that was actually performed” as “incompetent and inadequate.” DI 29-1 ¶ 17.

6-7. Neither the front door nor the back door has a unit number on it. DI 28-1 9 6, 9; DI 29-

1 99 6, 9.

The building’s shape is unusual. The front facade of the building consists of two

vertically stacked sections. The lower section is tan in color, juts out to the sidewalk, and is only

one story tall. DI 28-4 at 1 (ECF); DI 29-2 at 53 (ECF). Behind the tan section is a taller, two-

story brick section that is set back considerably from the sidewalk. /d. Both sections have

windows facing Torresdale Ave. /d. The front door is in the lower tan section. /d. The rear

side of the building — not visible from Torresdale Ave. — 1s tan in color, stands two stories tall,

and features a small room (like a covered service porch) extending off the back wall, about half

the width of the building. DI 29-2 at 59 (ECF). The back door is on this extension. /d.

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DI 28-4 at 1 (ECF) (front); DI 29-2 at 53 (ECF) (front); id. at 59 (back). As can be appreciated,

the building’s exterior does not indicate where either door leads, nor does it identify an entrance

to the “2nd floor rear” apartment covered by the warrant.

Nevertheless, Lieutenant Monk directed the other individual defendants to gather near

and forcibly breach the building’s front door because he expected that door to lead to an interior

common area housing doors to both apartment units.’ They did not knock or announce their

TDI 28-1 §f 22-24. Ms. Alvarado purports to dispute Lieutenant Monk’s alleged

expectation that the front door led to a common area by arguing that she is in “no position to

admit or deny what Lieutenant Monk ‘expected’” to be behind the building’s front door. DI 29-1

4 23. Lieutenant Monk’s subjective expectation is thus undisputed.

presence before breaching the front door.8 They heard the sounds of at least one dog barking

behind the door.9 After breaching, the individual defendants entered and found themselves in

Ms. Alvarado’s first floor apartment. DI 28-1 ¶¶ 25-26; DI 29-1 ¶¶ 25-26.

At that moment, the individual defendants encountered Ms. Alvarado and her pets,

including her service dog — a pitbull named Akuma. DI 28-1 ¶¶ 29-34; DI 29-1 ¶¶ 29-34, 38.

Ms. Alvarado wore little more than a bath towel and her pets were alarmed. DI 29-2 at 11-12

(ECF). The individual defendants ordered her to “get on the floor” at gunpoint. Id. at 14 (ECF).

They asked Ms. Alvarado how to access the second-floor apartment. Id. at 15 (ECF). She told

them that they would need to exit her apartment, because the building’s back door was the

second-floor apartment’s only entrance. Id. The individual defendants did not respond to Ms.

Alvarado’s directions. Id. Instead, they moved through her apartment, appearing to her to be in

search of a person. Id. They “ripped the curtain down from [her] laundry room,” entered her

bedroom and bathroom, and moved items around. Id. at 15-16 (ECF). At least one officer

checked her apartment for weapons. Id. at 15-16, 346 (ECF).

Meanwhile, Akuma barked, growled, and bared his teeth at defendant Officer Song,

biting his ankle several times.10 Officer Song tried to shake Akuma off his foot, but the dog

8 The parties dispute whether individual defendants knocked and announced their

presence before breaching Ms. Alvarado’s door. Compare DI 28-1 ¶¶ 21-24, with DI 29-1 ¶¶ 21-

24. Because Ms. Alvarado is the non-movant, we take her account as true here.

9 DI 29 at 23 (citing DI 29-2 at 362-63 (ECF)); see also DI 29-2 at 326, 346, 373-76, 381

(ECF).

10 DI 28-1 ¶¶ 29-32. For reasons explained in more detail below, Ms. Alvarado was not

able to materially dispute defendants’ description of Akuma’s level of aggression.

turned back towards him, refusing to “back[] down.” DI 28-1 ¶¶ 30, 32. As Akuma “lunged”

towards Officer Song, Officer Song shot and killed him. Id. ¶ 32.

After Officer Song shot Akuma, most of the individual defendants left in search of the

building’s rear entrance. DI 28-1 ¶ 35; DI 29-2 at 15 (ECF). But at least one stayed behind —

he kept Ms. Alvarado on the ground at gunpoint for about thirty minutes. DI 29-1 ¶ 35; DI 29-2

at 15-16 (ECF). Eventually, Ms. Alvarado was permitted to stand up, get dressed, and give her

statement to an officer processing the scene. DI 29-2 at 16 (ECF).

Video footage is scant. The individual defendants did not wear body cameras. DI 29-2 at

147 (ECF). But a nearby surveillance camera captured video footage (the “video”) of them

arriving in front of 4664 Torresdale Avenue in SWAT gear, gathering near the front door,

swinging a battering ram towards the door, and entering and exiting Ms. Alvarado’s apartment.11

The video does not have sound or closed captions, and Ms. Alvarado’s front door itself is out of

frame, as is the inside of her apartment. This lawsuit followed.

II. Defendants’ Motion for Summary Judgment

On summary judgment, the individual defendants argue that they did not violate the

Fourth Amendment because their conduct was reasonable as a matter of law before, during, and

after they mistakenly entered her apartment. DI 28 at 8. Further, individual defendants argue

that even if they did violate the Fourth Amendment, qualified immunity excuses their conduct.

Id. at 8-9, 15-16. For its part, the City argues that Ms. Alvarado’s Monell12 claim should be

11 Ms. Alvarado sent the video to us and to counsel of record via Dropbox link. The

video is unavailable on this case’s docket but appears to have been relied upon by Ms.

Alvarado’s expert, is referenced in Ms. Alvarado’s brief, and is labeled “A10_2021-6-

4053500_002.mp4.” See DI 29 at 3; DI 29-2 at 45 (ECF). We refer to the video as if it were an

exhibit to Ms. Alvarado’s opposition to defendants’ motion.

12 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

dismissed because the record does not establish a predicate Fourth Amendment violation, and

even if it did, Ms. Alvarado has not shown causation. DI 28 at 18-19.

Ms. Alvarado responds that on this record, a reasonable juror could conclude that

individual defendants violated the Fourth Amendment because they acted unreasonably in four

ways: (1) by targeting and entering her apartment by mistake; (2) by failing to knock and

announce their presence; (3) by remaining in her apartment and restricting her movement for

about thirty minutes after discovering their mistake; and (4) by fatally shooting her service dog.

DI 29 at 15-16. Ms. Alvarado further argues that individual defendants are not entitled to

qualified immunity because caselaw had clearly established their conduct as unlawful under the

Fourth Amendment. Id. at 16. Finally, Ms. Alvarado argues that the City is liable for individual

defendants’ conduct because of the obvious need to train officers on dog encounters, the knock-

and-announce requirement, and reconnaissance for search warrants, and because causation is a

fair — if not likely — inference from this record. Id. at 28-31.

III. Standard of Review

The Federal Rules of Civil Procedure require summary judgment movants to

“show[] that there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). A

material fact is one “that might affect the outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see SodexoMAGIC, LLC v.

Drexel Univ., 24 F.4th 183, 203 (3d Cir. 2022) (“[F]or a factual dispute to be material, its

resolution must have the potential to affect the outcome of the suit.”). And a “genuine

dispute” over a material fact means “a reasonable jury could return a verdict for” the party

not moving for summary judgment. Anderson, 477 U.S. at 248. In deciding whether a

genuine dispute of material fact exists, we must view “the evidence in the light most

favorable to the nonmovant.” Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir.

2010); see Young v. Martin, 801 F.3d 172, 174 n.2 (3d Cir. 2015). In qualified immunity

cases, that “‘usually means adopting . . . the plaintiff's version of the facts,’ unless ‘no

reasonable jury could believe it.’” Jacobs v. Cumberland County, 8 F.4th 187, 192 (3d Cir.

2021) (citation omitted) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)). But we may

not “weigh the evidence [or] assess its veracity.” Clews v. County of Schuylkill, 12 F.4th

353, 358 (3d Cir. 2021). Further, as an “added wrinkle” to our analysis here, “where there

is reliable video depicting the events in question, courts must not adopt a version of the

facts that is blatantly contradicted by video footage.” Jacobs, 8 F.4th at 192 (cleaned up).

IV. Analysis

a. A jury will determine whether the individual defendants violated a clearly

established right under the Fourth Amendment by mistakenly entering Ms.

Alvarado’s apartment unit.

We first consider whether the individual defendants violated the Fourth Amendment by

mistakenly entering Ms. Alvarado’s home without a warrant. “The Fourth Amendment to the

United States Constitution, applicable to the states by way of the Fourteenth Amendment,

guarantees ‘[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.’” Bletz v. Corrie, 974 F.3d 306, 308 (3d Cir. 2020)

(alteration in original). Entering the wrong house on a valid warrant violates the Fourth

Amendment if the circumstances would alert a reasonable officer to “the risk that they might be”

in the wrong place. Maryland v. Garrison, 480 U.S. 79, 87 (1987); see also Allen v. Dist. Att’y’s

Off., 644 F. Supp. 2d 600, 608 (E.D. Pa. 2009); Fullard v. City of Philadelphia, 1996 WL

195388, at *10 (E.D. Pa. Apr. 22, 1996). In other words, a mistaken search does not violate the

Fourth Amendment if the mistake was “objectively understandable and reasonable” in light of

facts known to officers at the time. Garrison, 480 U.S. at 88.

Garrison and Allen are instructive here. In Garrison, police officers obtained a warrant

to search a suspect and a certain apartment. 480 U.S. at 80. The apartment sat on the third floor

of an apartment building. Id. The warrant covered the entire third floor because officers

believed there to be only one apartment on that floor. Id. In fact, the third floor consisted of two

apartments — one the suspect’s and the other a neighbor’s. Id. The officers searched the wrong

apartment before realizing their mistake and terminating the search. Id. The Supreme Court

held that the mistaken search did not violate the Fourth Amendment because there were no

“objective facts” suggesting a “risk” that the officers might be in the wrong apartment. Id. at 87-

88.

In Allen, detectives who were concerned about illegal drug activity obtained a valid

warrant to seal a forfeited house. 644 F. Supp. 2d at 603. On his way to execute the warrant, an

officer walked down the house’s block. Id. He saw people entering and exiting a particular

house carrying bottles of beer. Id. On that information alone, he figured that house was the one

specified by the warrant, so he knocked on the door and gained entry. Id. More officers arrived

and ordered the occupants out of the house. Id. Eventually, a neighbor asked to see the warrant

and then informed officers that they were in the wrong house; the house specified by the warrant

was actually across the street (with its street number clearly marked). Id. Applying Garrison,

the Allen court held that it was unreasonable for the officer to “random[ly]” enter and evict a

home’s occupants without verification based solely on his deduction that it was the house

specified by the warrant. Id. at 608-09.

Here, there is a genuine dispute of material fact as to whether individual defendants acted

reasonably under the Fourth Amendment. Although Lieutenant Monk expected the door to lead

to a common area because it bore the building’s street number and because both apartment’s

mailboxes were next to it, our inquiry concerns whether a juror could find this mistaken belief

unreasonable in light of the circumstances known to the officers. See Allen, 644 F. Supp. 2d at

609. For several reasons, we think a reasonable juror could find in Ms. Alvarado’s favor. First,

the individual defendants knew the warrant specified the building’s “2nd floor rear” apartment

but chose to breach the building’s front door instead of the back door. DI 28-1 ¶¶ 12-13, 21-26.

Second, it is readily apparent from the exterior of the building that the front door leads directly

into a portion of the building that is only one story tall.13 Third, officers heard dogs barking

behind Ms. Alvarado’s front door but did not pause to verify that it did not lead to a residence.14

Coupled with the reality that the officers did not know for sure where the front door led, the facts

call into dispute whether reasonable officers would have appreciated some risk that the door

could lead to a first-floor residence not covered by their warrant.

Before sending this theory of liability to the jury, we must consider whether, even if the

individual defendants violated the Fourth Amendment by mistakenly entering Ms. Alvarado’s

apartment, they are protected by qualified immunity. “Qualified immunity shields government

officials from personal liability for civil damages” unless their conduct “violate[s] clearly

established statutory or constitutional rights of which a reasonable person would have known” at

13 See supra Part I (photograph of 4664 Torresdale Ave., taken from DI 29-2 at 53

(ECF)).

14 DI 29 at 23 (citing DI 29-2 at 362-63 (ECF)). See also DI 29-2 at 326, 346, 373-76,

381 (ECF).

the time of the violation. George v. Rehiel, 738 F.3d 562, 571-72 (3d Cir. 2013) (cleaned up).

To decide whether a right was clearly established, we must first define it “in light of specific

context of the case, not as a broad general proposition.” Id. at 572 (quoting Brosseau v. Haugen,

543 U.S. 194, 198 (2004)). Once defined, a right can be considered clearly established at the

time of the violation if at that time, caselaw put the matter “beyond debate.” Id. (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). But a prior case establishing the right need not

be “directly on point.” Ashcroft, 563 U.S. at 741.

Here, as of the date of the incident — June 4, 2021 — caselaw clearly put beyond debate

that police officers violate the Fourth Amendment if they mistakenly enter the wrong home

pursuant to a search a warrant unless that mistake was “objectively understandable and

reasonable.” Garrison, 480 U.S. at 88. That principle dates back at least to Garrison, which in

1987 held that a mistaken entry is reasonable if made absent facts that would otherwise suggest

to police officers that they might be searching the wrong premises. Id. at 87.

Fullard and Allen bolster our view that Garrison does enough to pass this issue to the

jury. In 1996, Fullard observed that “there are many cases in which courts have denied claims

of qualified immunity by police personnel . . . . [Where] the defendant officers were aware of

factual discrepancies which would have placed reasonable officers on notice that they were

searching the wrong premises or seizing the wrong person.” 1996 WL 195388, at *7. And in

2009, Allen instructed that a mistaken entry into a residence violates the Fourth Amendment

when officers assume, without verification, that the residence is the one specified by a warrant

based only on limited observations of the home’s exterior. 644 F. Supp. 2d at 609.

Here, a jury could conclude that the individual defendants ignored facts that should have

alerted them to some risk that they were about to breach the front door to a private home not

covered by the warrant. Caselaw had established such conduct — so viewed by a jury — as a

Fourth Amendment violation long before June 4, 2021. Therefore, we deny summary judgment

on qualified immunity and as to this theory of liability generally.

b. A jury will determine whether the individual defendants violated a clearly

established right under the Fourth Amendment by failing to knock and

announce their presence before breaching Ms. Alvarado’s door.

Ms. Alvarado next argues that the individual defendants violated the Fourth Amendment

by breaching her front door without knocking and announcing. A reasonable residence search

pursuant to a warrant generally requires police officers to announce their presence and intent to

conduct the search — for example, by knocking and announcing. Wilson v. Arkansas, 514 U.S.

927 (1995); United States v. Banks, 540 U.S. 31, 36 (2003). Officers may forego a knock and

announce only if they encounter certain exigent circumstances, including where “(1) the

individual inside [is] aware of the officers’ identity and thus announcement would [be] a useless

gesture; (2) announcement might lead to the sought individual’s escape; (3) announcement might

place the officers in physical peril; [or] (4) announcement might lead to the destruction of

evidence.” Kornegay v. Cottingham, 120 F.3d 392, 397 (3d Cir. 1997).

Here, there is a genuine dispute over whether individual defendants conducted a knock

and announce. Defendants state that “officers of the SWAT Unit” conducted a knock and

announce on the front door of 4664 Torresdale Ave., waited about fifteen to twenty seconds,

received no answer, then breached the door. DI 28-1 ¶¶ 21-22. But the record could support a

reasonable juror’s conclusion to the contrary. First, Ms. Alvarado testified that she never heard a

knock and announce, even though she was awake and walking towards “the front” of her one

floor apartment — i.e., near the door. DI 29-2 at 11-13 (ECF). Second, the record reflects

inconsistent accounts of the alleged knock and announce, including which defendant conducted

it.15 Third, Ms. Alvarado’s account does not conflict with the available video evidence. The

video, recorded by an outdoor security camera, sheds little light on what exactly happened

outside the door. See A10_2021-6-4053500_002.mp4. It has no sound, no closed captions, and

does not show whether any officer knocked or otherwise contacted the door before breaching it.

Id. Only a jury can resolve this dispute. ADA Anglemeyer v. Ammons, 2024 U.S. App. LEXIS

2828 at *12, 92 F.4th 184 (3d Cir. 2024) (“competing evidence” constitutes a “classic factual

dispute” appropriate for resolution at trial (quoting Smith v. Mensinger, 293 F.3d 641, 650 (3d

Cir. 2002))).

As for qualified immunity on this theory, “[i]t is well established in the Third Circuit that

a failure to knock and announce in serving an ordinary warrant, absent certain exigent

circumstances, works a deprivation of the Fourth Amendment rights of the residents, then

present, of the dwelling entered.” Hammond v. Acerno, 2021 WL 5176299, at *4 (E.D. Pa. Nov.

4, 2021) (discussing Kornegay, 120 F.3d at 397). The knock and announce principle is an

“ancient” and “traditional” protection. Hudson v. Michigan, 547 U.S. 586, 589 (2006). Indeed,

as of June 4, 2021, it was clearly established that a police officer violates the Fourth Amendment

by breaching a dwelling without first knocking and announcing unless they reasonably suspect

certain exigent circumstances as described above. Kornegay, 120 F.3d at 397 (collecting cases).

15 In statements made to the Philadelphia Police Department Officer Involved Shooting

Unit hours after the incident, individual defendants Officer Murray, Officer Clark, and

Lieutenant Monk claimed that Officer Clark conducted the knock and announce. DI 29-2 at 342,

346, 349 (ECF). Similarly, defendant Officer Murray testified in his deposition that he believed

that Officer Clark conducted the knock and announce. Id. at 100 (ECF). But when Officer Clark

testified in his deposition, he had no recollection of knocking on the door and seemed to imply

that Officer Murray conducted the knock and announce. Id. at 316-20 (ECF).

The individual defendants do not seriously suggest the presence of exigent circumstances

here.16 And taking the facts and their reasonable inferences in favor of Ms. Alvarado, a jury

could conclude that the individual defendants breached her front door without knocking and

announcing their presence and purpose. Such conduct was clearly established as a violation of

the Fourth Amendment before June 4, 2021, so individual defendants are not entitled to qualified

immunity. This theory, too, survives summary judgment.

c. A jury will determine whether the individual defendants violated a clearly

established right under the Fourth Amendment by detaining Ms. Alvarado

after realizing their mistake.

Ms. Alvarado next claims that the individual defendants violated the Fourth Amendment

by detaining her on the floor at gunpoint for about thirty minutes after realizing their mistaken

entry into her home. DI 29 at 27-28. Defendants disagree with this characterization, arguing

that they were merely securing the scene with Ms. Alvarado’s consent. DI 30 at 5. As an initial

matter, there is a genuine dispute of material fact as to the length and nature of Ms. Alvarado’s

post-search detention. Relying on Ms. Alvarado’s account, as we must, a juror could reasonably

conclude that defendant officers detained Ms. Alvarado against her will for about thirty

minutes.17 And a jury could find that the seizure violated the Fourth Amendment.

16 Relevant to this point, the individual defendants state that before the breach, they were

“bunched at the front door, poised to execute a search warrant for a [homicide] suspect.” DI 28

at 14-15. They call this a “tactically unsound position,” presumably implying that it imperiled

their safety. Id. at 14. But the individual defendants simultaneously insist that they did conduct

a knock and announce and that they expected Ms. Alvarado’s door to lead to a common area (not

a residence housing a homicide suspect), which undermines any suggestion of exigent

circumstances. DI 28-1 ¶¶ 21-23.

17 Ms. Alvarado testified as much. DI 29-1 ¶ 35; DI 29-2 at 15-16 (ECF). Her testimony

does not support any inference of consent; she recounts being held on the floor at gunpoint in a

state of undress. DI 29-2 at 15-16 (ECF). Further, the video reflects eight officers in SWAT

gear entering Ms. Alvarado’s apartment at the 2:44 minute mark. See A10_2021-6-

Several legal principles provide guidance here. First, Ms. Alvarado’s forcible detention

was a seizure under the Fourth Amendment. Gomez v. Feissner, 474 F. App’x 53, 57 (3d Cir.

2012) (a police officer makes a seizure under the Fourth Amendment when they restrain a

person’s liberty “by means of physical force or show of authority” (cleaned up)). Second, and to

defendants’ point, officers searching a home pursuant to a warrant may make reasonable seizures

“to secure the premises and to ensure their own safety and the efficacy of the search.” Los

Angeles County v. Rettele, 550 U.S. 609, 614 (2007). This is true even if the initial search is

made by mistake. Id. at 615-16. Further, officers with a warrant for one apartment in a multi-

unit building may make protective sweeps and short detentions in other apartments as part of

efforts to secure the entire building. Gomez, 474 F. App’x at 57. But even in these

circumstances, officers must end a seizure after completing the search or when they know (or

should know) that they are without authority to search or seize. Id. (citing Michigan v. Summers,

452 U.S. 692, 705 (1981); Garrison, 480 U.S. at 79. Finally, “restraints and detention for a

‘prolonged and unnecessary period of time’ [are] unreasonable.” Poindexter v. Carroll, 2013

WL 2351360, at *13 (M.D. Pa. May 23, 2013) (quoting Rettele, 550 U.S. at 614).

4053500_002.mp4. It then shows seven officers in SWAT gear exiting at 4:23 minute mark. Id.

Then at the 14:37 minute mark, two more officers in SWAT gear enter. Id. Then two officers in

SWAT gear exit at the 15:37 minute mark. Id. Then another officer in uniform enters at the

23:23 minute mark. Id. Then another officer in uniform enters at the 24:03 minute mark. Id.

Then an officer in uniform exits at the 24:13 minute mark. Id. Then an officer in SWAT gear

exits at the 24:22 minute mark. Id. The video ends at the 35-minute mark before the final

uniformed officer exits. Id. This sequence suggests that at least one member of the SWAT unit

remained in Ms. Alvarado’s apartment for about twenty-two minutes, while at least one officer

remained in her apartment for about thirty minutes or more after the SWAT unit’s initial breach.

Id. At oral argument, defendants argued, without citing to the record, that it does not reflect that

Ms. Alvarado was forcibly detained for about thirty minutes. But she testified that she was, and

the video does not clearly contradict that testimony.

Rettele describes a reasonable detention pursuant to a mistaken search. 550 U.S. 609. In

that case, officers obtained a valid search warrant for a house but did not know that the subjects

of the warrant had moved out of the house while new unrelated occupants had moved in. Id. at

610-11. When officers entered the house, they briefly detained the new occupants at gunpoint,

allowed the occupants to get dressed, realized their mistake, and departed the premises within a

span of several minutes. Id. at 611-12. The Supreme Court held that the officers’ brief seizure

of the occupants at gunpoint, even in their undressed state and even though they were not subject

to a warrant, was nevertheless reasonable under the Fourth Amendment because the officers

“needed a moment to secure the room and ensure that other persons were not close by or did not

present a danger.” Id. at 615. But the Court cautioned that the officers “were [not] free to force

[the occupants] to remain motionless and standing for any longer than necessary” to protect their

safety. Id.

In contrast, Gomez describes a “protective sweep” that was reasonable at first but became

an unreasonable seizure. 474 F. App’x at 53. In that case, a police officer did not violate the

Fourth Amendment by making a five to fifteen minute “protective sweep” of an apartment unit

in a building as part of efforts to secure the whole building, even though the warrant covered a

different unit. Id. at 57. But his colleague did make an unreasonable seizure by involuntarily

detaining the residents of the non-warrant apartment for several hours after the protective sweep.

Id.

Ms. Alvarado’s detention is similar to Gomez. She was forced to remain motionless on

the floor, at gunpoint, for about thirty minutes while clad in a towel even after most individual

defendants had left her apartment in search of the right unit and suspect. By that point,

individual defendants had already cleared her small apartment and checked for weapons. DI 29-

1 ¶ 35; DI 29-2 at 15-16, 346 (ECF). They knew — in short order — that her apartment did not

connect to the unit they sought. DI 28-1 ¶ 35. And no facts indicate that concerns for officer

safety or search efficacy motivated Ms. Alvarado’s detention. Rettele, 550 U.S. 609 at 614.

Such a seizure violates the Fourth Amendment’s prohibition on prolonged and unnecessary

detentions.

Turning to qualified immunity, officers who have conducted a wrongful seizure “are

entitled to qualified immunity unless they knew information which would have alerted a

reasonable officer of the possibility of a Fourth Amendment violation.” Fullard, 1996 WL

195388, at *9. As of June 4, 2021, it was clearly established that police officers violate the

Fourth Amendment if they make unnecessary or prolonged detentions incident to a residential

search without a warrant. To wit, in 2007, Rettele instructed that officers violate the Fourth

Amendment by forcing people to remain “motionless” in their own home for “any longer than

necessary” to protect officer safety. 550 U.S. at 615. Similarly, Gomez instructed in 2011 that

while officers may conduct brief protective sweeps of apartments not subject to warrants in order

to secure a building, they violate a clearly established right under the Fourth Amendment if they

detain residents of those apartments for a prolonged time. 474 F. App’x at 57.

Here, the individual defendants had already cleared Ms. Alvarado’s apartment, knew that

it did not connect to the apartment for which they had a warrant, and have not raised a dispute

about officer safety or scene security. They detained Ms. Alvarado for a prolonged time at

gunpoint while she remained in a state of undress — a Fourth Amendment violation clearly

established under the law by 2021. We thus deny summary judgment as to this theory of

liability.

d. Akuma’s killing did not Violate the Fourth Amendment.

Ms. Alvarado’s fourth theory is that the individual defendants violated the Fourth

Amendment by killing her dog, Akuma. That is a seizure under the Fourth Amendment. Bletz,

974 F.3d at 308 (people have a possessory interest in their pets). But police officers may make

reasonable seizures under the Fourth Amendment, and it is reasonable for an officer to use fatal

force against a dog behaving aggressively or threatening an imminent attack. Compare Bletz,

974 F.3d at 310-11 (granting summary judgment for defendant officer who fatally shot dog

because the dog was charging, growling, and baring its teeth at the officer), with Brown v.

Muhlenberg Township, 269 F.3d 205, 209 (3d Cir. 2001) (denying summary judgment for

defendant officer who fatally shot dog because the dog was not barking, growling, or behaving

aggressively).

Here, the undisputed record shows that Officer Song shot Akuma because he was

behaving aggressively and threatening an imminent attack. Specifically, Akuma barked,

growled, bit Officer Song’s ankle several times, and lunged towards Officer Song even after

Officer Song shook the dog off his ankle. DI 28-1 ¶¶ 30-32. Ms. Alvarado does not genuinely

dispute the nature of Akuma’s conduct. Rather, she argues that “a reasonable juror could

conclude that Akuma never posed any threat to Officer Song” because Akuma’s bites left no

physical evidence on Officer Song’s leg; Officer Song’s testimony was partially inconsistent as

to which leg and how many bites; and Officer Song shot Akuma from several feet away. DI 29-

1 ¶¶ 30-32; DI 35 at 5. But those arguments do not call Officer Song’s version of the story into

serious dispute.

A lack of bite marks alone does not contradict Officer Song’s account that Akuma lunged

at him and bit him. And the individual defendants were clad in tactical gear including high

boots. See A10_2021-6-4053500_002.mp4. Similarly, Officer Song’s lack of recall as to where

exactly and how many times Akuma bit his lower extremities does little to show that Akuma

never bit him. These observations might carry some weight along with, e.g., testimony from Ms.

Alvarado that Akuma did not in fact bite Officer Song. But it is undisputed that Akuma was

barking, growling, baring his teeth, and lunging toward Officer Song.18 Those undisputed facts

sufficiently establish Akuma’s conduct as aggressive and predictive of an imminent attack. See

Bletz, 974 F.3d at 310. Therefore, we grant summary judgment for individual defendants as to

Akuma’s killing.19 And because Akuma’s killing did not violate the Fourth Amendment, we

need not decide whether individual defendants are entitled to qualified immunity regarding the

same. Rettele, 550 U.S. at 616 (“As respondents’ constitutional rights were not violated, ‘there is

no necessity for further inquiries concerning qualified immunity.’”) (quoting Saucier v. Katz,

533 U.S. 194, 201 (2001)).

e. Ms. Alvarado shows adequate Monell causation to survive summary

judgment.

Under 42 U.S.C. § 1983, plaintiffs may bring claims against municipalities for

constitutional violations by police officers if a failure by the municipality caused the violation.

18 Compare DI 28-1 ¶¶ 30-32, with DI 29-1 ¶¶ 30-32.

19 Ms. Alvarado also argues that even if Akuma did behave aggressively towards Officer

Song, the dog’s death was the proximate cause of an unlawful entry into Ms. Alvarado’s home

and was therefore de facto unreasonable. DI 35 at 3-4 (first citing Est. of Singletary v. City of

Philadelphia, 2021 WL 5235232, at *1 (E.D. Pa. Nov. 10, 2021); then citing Mendez v. City of

Los Angeles, 897 F.3d 1067 (9th Cir. 2018); and then citing Sledd v. Lindsay, 102 F.3d 282 (7th

Cir. 1996)). We decline to adopt Ms. Alvarado’s argument. The authorities she cites are non-

binding and distinguishable because they pertain to excessive use of force against individuals,

not unreasonable seizures of property. Absent binding authority to the contrary, we follow Bletz

and Brown as described above. That said, this opinion should not be read to exclude any

reference to Akuma’s killing at trial, given the potential connection to other issues such as

damages.

Monell, 436 U.S. at 694; Forrest v. Parry, 930 F.3d 93, 105 (2019). The failure must reflect a

conscious choice amounting to deliberate indifference. Forrest, 930 F.3d at 106. Further, the

alleged deficiency must be “closely related” to the constitutional violation; attenuated links will

not suffice. Id. at 109. “[I]n other words, ‘the deficiency in training [must have] actually

caused’ the constitutional violation.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir.

2014) (second alteration in original) (quoting City of Canton v. Harris, 489 U.S. 378, 391

(1989)). While a plaintiff must adduce “proof from which to infer that implementing the

changes to the training program that [they] suggest[] would have made any difference,” Forrest,

930 F.3d at 109, causation should be left to the jury if “the causal link is not too tenuous” at

summary judgment, Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990).

Ms. Alvarado argues that the City failed to adequately train its officers regarding dog

encounters, knock-and-announce requirements, and search warrant reconnaissance. DI 29 at 28.

Defendants first counter that Ms. Alvarado has not established a constitutional violation. DI 28

at 18. We disagree. As we explained, Ms. Alvarado established triable disputes over whether

the individual defendants violated the Fourth Amendment by mistakenly entering Ms.

Alvarado’s apartment without knocking and announcing and then meaningfully detaining her.

See supra. But defendants are right that because individual defendants’ encounter with Akuma

did not amount to a constitutional injury, the City cannot be liable on that theory. See Marable v.

West Pottsgrove Township, 176 F. App’x 275, 283 (3d Cir. 2006) (“[A] municipality may not

incur Monell liability as a result of the actions of its officers when its officers have inflicted no

constitutional injury.”); Persico v. City of Jersey City, 67 F. App’x 669, 676 (3d Cir. 2003)

(“Proof of a constitutional injury is a threshold requirement for a Monell claim.”). Similarly, Ms.

Alvarado does not argue that the City failed to train individual defendants about post-search

detentions. So our inquiry here focuses on the City’s potential liability for the individual

defendants’ mistaken entry into Ms. Alvarado’s apartment and their failure to knock and

announce first.

Defendants also argue that Ms. Alvarado cannot establish that the City caused her

constitutional injuries. DI 28 at 18; DI 30 at 7; DI 37 at 5. Ms. Alvarado responds that the

City’s need to train officers on reconnaissance and knocking and was “‘so obvious’ as to subject

the City [] to Monell liability.” DI 29 at 28. We note here that the obviousness of a need to train

officers on a particular topic generally speaks to a municipality’s deliberate indifference.20 Here,

defendants primarily attack Ms. Alvarado’s claim for lack of causation; they do not seriously

argue a lack of deliberate indifference.21 But while the two are separate elements of a Monell

failure to train claim, if a constitutional violation is a highly predictable consequence of a failure

to train, that predictability may also support an inference of causation. See, e.g., Thomas, 749

F.3d at 226 (stating “[c]ausation is a requirement for failure-to-train liability that is separate from

deliberate indifference; however, ‘[t]he high degree of predictability . . . may also support an

inference of causation — that the municipality's indifference led directly to the very consequence

20 See Thomas, 749 F.3d at 223 (stating “in certain situations, the need for training can be

said to be so obvious that failure to do so could properly be characterized as deliberate

indifference to constitutional rights” (cleaned up)).

21 Defendants’ limited references to the deliberate indifference standard cannot sustain

their motion. For instance, in their opening brief, defendants state, without elaboration, that Mrs.

Alvarado has “adduced no evidence of similar incidents . . . that would indicate that the City . . .

was deliberately indifferent.” DI 28 at 19. In their reply brief, defendants argue that Ms.

Alvarado cannot show causation but do not argue deliberate indifference. DI 30 at 7. In their

sur-sur reply brief, defendants state that Ms. Alvarado “has adduced no evidence that any

specific lack of training was indicative of deliberate indifference” but then go on to discuss

causation only. DI 37 at 5. A movant cannot merely invoke an argument — it must make it.

Even if defendants had adequately advanced a deliberate indifference argument, predictability

and obviousness, as explored below, can speak to both deliberate indifference and causation.

Thomas, 749 F.3d at 223-24, 26.

that was so predictable.’” (second alteration in original) (quoting Bd. of the Cty. Comm’rs v.

Brown, 520 U.S. 397, 409 (1997))). In such a case, a plaintiff can preclude summary judgment

by putting forth evidence that a jury could rely on with “judgment and common sense” to find a

causal relationship between the alleged lack of training and the constitutional injuries at bar. Id.

at 227. Sufficient evidence could be expert opinion or witness testimony. Id. at 226-27.

We see sufficient evidence of causation here to forestall summary judgment. Consider

Ms. Alvarado’s theory that the City did not adequately train individual defendants on warrant

reconnaissance. Ms. Alvarado advances evidence that the City maintained written directives

instructing officers to eliminate any “doubt” about subject location and warrant premises,

including by checking with a known suspect’s parole or probation officer. DI 29 at 12; DI 29-2

at 67, 71-73 (ECF). Ms. Alvarado also advances evidence that defendant Sergeant Mellody, who

oversaw pre-execution reconnaissance at 4664 Torresdale Ave., was not trained on those written

directives. DI 29-2 at 409-10, 422-23 (ECF) (testimony by Sergeant Mellody that he did not

recall training on the City’s written directives and thought that it was not his responsibility to

communicate with parole or probation staff about warrant premises). Instead, he chose to breach

4664 Torresdale Ave.’s front door based on his observations of the building’s exterior. Id. at

407-08 (ECF). He testified that had he known what probation staff knew (that the entrance to the

suspect’s apartment was through the rear door), he would not have chosen Ms. Alvarado’s door

as the breach point. Id. at 410-11 (ECF). Further, Ms. Alvarado cites unrebutted expert opinion

that individual defendants failed to follow “national standards” in planning and executing the

warrant here, which mandate, among other things, that officers verify floor plans and entrances

before executing a warrant. Id. at 85-88 (ECF).

A reasonable juror could infer a causal relationship here because Ms. Alvarado has

adduced proof that better training would have “made a difference.” Forrest, 930 F.3d at 109.

Sergeant Mellody testified that he was not trained to confirm points of entry with probation staff

when executing a warrant for a known suspect and that he would have planned the warrant

execution at 4664 Torresdale Ave. differently had he taken that step here. The connection

between that missing step and Ms. Alvarado’s injuries is surely not “too tenuous.” Bielecki, 915

F.2d at 851.

Similarly, a reasonable juror could infer that had individual defendants received adequate

training on par with the “national standards” Ms. Alvarado cites, they could have avoided their

mistaken entry into her apartment. See Thomas, 749 F.3d at 221, 226 (denying summary

judgment on Monell failure to train claim based on expert evidence, including expert’s

comparison to national training standards). Finally, we think unconstitutional intrusions into

private residences a highly predictable consequence — if not the most predictable

consequence — of failing to train police officers to verify that a breach point does not lead to

someone else’s home before executing a warrant. That level of predictability entitles a jury to

find a causal relationship between the alleged inadequate training here and Ms. Alvarado’s

injuries. See, e.g., id. at 226. For all these reasons, we deny summary judgment on Ms.

Alvarado’s Monell claim.

V. Conclusion

For the reasons discussed above, we grant defendants’ motion for summary in part and

deny it in part. Ms. Alvarado’s Fourth Amendment claim against individual defendants may

proceed to trial based on their mistaken entry into her home, their failure to knock and announce

their presence, and her extended detention. Her claim against the City may proceed to trial as

well. But her claim may not proceed against individual defendants or the City on the theory that

Akuma’s killing violated the Fourth Amendment. And finally, defendant Officers Ashford,

Scott, Fitzpatrik, Rivera, Quintana, Riotto, and Cerutti are dismissed by agreement of the parties.