                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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Recommended Citation
"Kerusenko v. New Jersey" (2004). 2004 Decisions. Paper 132.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/132


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                                                   NOT PRECEDENTIAL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.

________________________




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