Filed: Oct. 07, 2002
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2002 Decisions States Court of Appeals for the Third Circuit 10-7-2002 Lowry v. City of Scranton Precedential or Non-Precedential: Non-Precedential Docket No. 01-2028 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002 Recommended Citation "Lowry v. City of Scranton" (2002). 2002 Decisions. Paper 638. http://digitalcommons.law.villanova.edu/thirdcircuit_2002/638 This decision is brought to you for free and open access by the Opini
Summary: Opinions of the United 2002 Decisions States Court of Appeals for the Third Circuit 10-7-2002 Lowry v. City of Scranton Precedential or Non-Precedential: Non-Precedential Docket No. 01-2028 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002 Recommended Citation "Lowry v. City of Scranton" (2002). 2002 Decisions. Paper 638. http://digitalcommons.law.villanova.edu/thirdcircuit_2002/638 This decision is brought to you for free and open access by the Opinio..
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Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
10-7-2002
Lowry v. City of Scranton
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-2028
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002
Recommended Citation
"Lowry v. City of Scranton" (2002). 2002 Decisions. Paper 638.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/638
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 2002 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 01-2028 and 01-2040
___________________
LISA LOWRY, Individually and as Parent and Natural Guardian
of Matthew Lowry, a Minor, Kaitlin Lowry, a Minor and Emily
Lowry, a Minor
v.
CITY OF SCRANTON, Pennsylvania; GUNTHER PISA, Individually,
and as a Police Officer, Scranton, PA;
WILLIAM STRONG, Individually and as a Pennsylvania State
Police Officer; JOHN DOE 1, Individually and as a Police
Officer, Scranton, PA; JOHN DOE 2, Individually and as a Police
Officer, Scranton, PA; MINMAUGH, First Name Unknown, Individually,
and as a Pennsylvania State Police Officer; PA STATE POLICE; EDWARD
BONIN, Individually and as a Police Officer, Scranton, PA;
WILLIAM MURPHY, Individually and as A Pennsylvania State
Police Officer; CURTIS A. SZCZECINSKI, Individually and as a Pennsylvania
State Police Officer; THOMAS KOBESKI, Individually and as a
Pennsylvania State Police Officer
William Murphy; Curtis Szczecinski;
Thomas Kobeski; William Strong, Appellants in No. 01-2028
---------------------------------------------------
LISA LOWRY, Individually and as Parent and Natural Guardian
of Matthew Lowry, a Minor, Kaitlin Lowry, a Minor and Emily
Lowry, a Minor
v.
CITY OF SCRANTON, Pennsylvania;
GUNTHER PISA, Individually, and as a Police Officer,
Scranton, PA; WILLIAM STRONG, Individually and as a
Pennsylvania State Police Officer; MINMAUGH, First Name Unknown, Individually,
and as a Pennsylvania State Police Officer; PA STATE POLICE;
EDWARD BONIN, Individually and as a Police Officer,
Scranton, PA; WILLIAM MURPHY, Individually and as A Pennsylvania State
Police Officer; CURTIS A. SZCZECINSKI, Individually and as a
Pennsylvania State Police Officer; THOMAS KOBESKI,
Individually and as a Pennsylvania State Police Officer
Edward Bonin; Gunther Pisa, Appellants in No. 01-2040
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 99-cv-00557)
District Judge: Honorable Thomas I. Vanaskie, Chief Judge
_______________________________________
Argued: May 21, 2002
Before: BECKER, Chief Judge, GREENBERG, Circuit Judge,
and BARZILAY, Judge, U.S. Court of International Trade.*
(Filed: October 4, 2002)
D. MICHAEL FISHER, ESQUIRE
Attorney General
DANIEL J. DOYLE, ESQUIRE (ARGUED)
Senior Deputy Attorney General
CALVIN R. KOONS, ESQUIRE
Senior Deputy Attorney General
JOHN G. KNORR, III, ESQUIRE
Chief Deputy Attorney General
Chief, Appellate Litigation Section
Office of Attorney General
Litigation Section
15th Fl., Strawberry Square
Harrisburg, PA 17120
Counsel for Appellants Murphy, Szczecinski, Lobeski and Strong
*
Honorable Judith M. Barzilay, Judge, United States Court of International Trade, sitting
by designation.
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NANCY M. BARRASSE-SOLIMAN, ESQUIRE (ARGUED)
Blaum & Barrasse
108 North Washington Avenue, Suite 1105
Scranton, PA 18503
Counsel for Appellants Pisa and Bonn
ANDREW HAILSTONE, ESQUIRE (ARGUED)
Kreder, Brooks, Hailstone & Ludwig
220 Penn Avenue, Suite 200
Scranton, PA 18504
Counsel for Appellee Lowry
_______________________
OPINION
_______________________
BECKER, Chief Judge.
This is an appeal by a number of law enforcement officers, some employed by the
Pennsylvania State Police and some by the City of Scranton Police Department, from an
order of the District Court denying their motions for summary judgment on grounds of
qualified immunity. We will dismiss the appeal for lack of appellate jurisdiction.
The lawsuit grew out of a confused set of events that followed a drug arrest in a
residential neighborhood. Because the parties are fully familiar with the background facts
and procedural history we need not set them forth, and limit our discussion to our ratio
decidendi. The flavor of the case and the basis for our decision here will be illuminated by
setting forth an excerpt from one of the appellant’s briefs:
The actions taken by Officers Bonin and Pisa were
objectively reasonable in light of the chaotic scene created by
the Lowrys and their relatives in the midst of an arrest of a drug
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dealer considered to be dangerous. The Lowrys’ conduct was
disproportionate to the relatively short intrusion into their
liberty and the serious and justifiable reason for it. A member
of their family had just alighted from an undercover
Pennsylvania State police vehicle and opened the back door.
The officers on the scene to make the arrest stopped the
Lowrys in a manner which was reasonable under the
circumstances then existing on the scene and consistent with
the information conveyed to them by the undercover State
Police officers in the van.
The officers’ version is, not surprisingly, controverted by the plaintiffs, who offered
evidence that the officers trained guns on three minors for a considerable period of time
after the suspect had been arrested and the area secured.
The touchstone of the appeal lies in the following statements of the able District
Judge in his opinion denying summary judgment.
Viewing the evidence in the light most favorable to the
Lowrys, there are material issues of fact from which a jury
could conclude that the officers’ detention of the Lowrys and
the use of guns were unreasonable under the circumstances of
this case. Although the officers’ initial decision to detain the
Lowrys while placing Harvey under arrest may have been
reasonable, the detention of the Lowrys significantly exceeded
the amount of time it took the officers to complete that task.
The facts show that Harvey, the only suspect to be arrested, was
placed in handcuffs almost immediately after the police arrived
at the scene. The evidence also suggests that Harvey was
neither uncooperative nor hostile. The Lowrys, however, were
detained for at least another 10 to 15 minutes. Moreover,
despite Mrs. Lowry’s continued protestations to allow her
young children to leave the car, the officers took active steps
to prevent anyone from removing Kaitlin and Emily and
allegedly made threats to individuals who attempted to remove
the girls. Although the officers assert that such detention was
necessary for the Lowrys’ protection and to ascertain the
Lowrys’ involvement, it is undisputed that the officers never
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searched the Lowrys or Mrs. Lowrys’ vehicle, never asked the
Lowrys questions about their connection with Harvey, or spoke
with them after the detention of Mr. Harvey.
***
Summary judgment on the issue of qualified immunity
is inappropriate “where the case depends upon the factfinder’s
evaluation of the officer’s conduct.” See Clarke v. City of
Philadelphia, No. Civ. A. 92-4700, 1994 WL 388559, at *6
(E.D. Pa. July 27, 1994). This is especially true where, as here,
there is a genuine dispute about facts material to an assessment
of the officers’ conduct. In this case, there is a dispute as to
when the Lowrys first knew they were confronted by law
enforcement officers; there is a dispute as to how long the
weapons remained trained on the Lowrys; and there is a dispute
as to the length of time they were detained. Whether a
reasonable officer would have known that his or her conduct
was unconstitutional depends on resolution of these factual
disputes.
In Johnson v. Jones, 515 U.S. 304 (1995), the Supreme Court held that “a portion
of a district court’s summary judgment order that, though entered in a ‘qualified immunity’
case, determines only a question of ‘evidence sufficiency’ . . . is not appealable.”
Id. at
313. This holding rested on the Court’s distinction between an appeal that raised, “not
which facts the parties might be able to prove, but, rather, whether or not certain given facts
showed a violation of ‘clearly established’ law,”
id. at 311, which is immediately
appealable, and an appeal that raises “questions about whether or not a record demonstrates
a ‘genuine’ issue of fact for trial,”
id. at 316, which it held was not immediately appealable.
These two situations, according to the Court, are conceptually distinct, with the
5
former being immediately appealable because it raises issues “separate” from the merits of
plaintiff’s claim. Quoting Mitchell v. Forsyth, 472 U.S. 511, 528 (1985), a case in which
the Court was asked to determine whether undisputed facts violated “clearly established”
law, the Court clarified why such a question raised an issue separate from the merits of the
case, stating that an:
appellate court reviewing the denial of the defendant’s claim of immunity
need not consider the correctness of the plaintiff’s version of the facts, nor
even determine whether plaintiff’s allegations actually state a claim. All it
need determine is a question of law: whether the legal norms allegedly
violated by the defendant were clearly established at the time of the
challenged actions, or, in cases where the district court has denied summary
judgment for the defendant on the ground that even under the defendant’s
version of the facts the defendant’s conduct violated clearly established law,
whether the law clearly proscribed the actions the defendant claims he took.
Id. at 313. Applying Johnson here, where the District Court concluded that there were
genuine issues of fact regarding the duration of the detention and the use of force, a
decision that does not raise questions separate from the merits of plaintiffs’ claim, we have
no appellate jurisdiction.
The appellants contend that what we should do is to take the facts in the light most
favorable to the plaintiffs and rule that even on those facts, the officers were entitled to
qualified immunity. This is an attempt by the appellants to take the case out of Johnson’s
proscription, and into the realm of Mitchell, discussed supra. We respectfully decline that
invitation.
First, the facts of the case are most unclear. Even if we were inclined to view the
facts in the light most favorable to the Lowrys, we would not be able to determine whether
6
the conduct violated “clearly established” law because there is no consensus on what the
facts are in the light most favorable to the Lowrys, as was borne out at oral argument.
Rather, there is a real and continuing dispute between the parties as to, for example, the
length of time that weapons were trained on Lisa Lowry and her children, as well as the
length of time that the parties were detained after Philip Harvey was placed in custody.
This was precisely what the District Court noted when it concluded that summary judgment
based on qualified immunity was inappropriate: “Viewing the evidence in the light most
favorable to the Lowrys, there are material issues of fact from which a jury could
conclude that the officers’ detention of the Lowrys and the use of guns were unreasonable
under the circumstances of this case.” (emphasis added).
Second, we are here asked to review a District Court’s order, and as such we ought
to review what the District Court did, not what the District Court did not do. As just
mentioned, the District Court concluded that even if it were to take the facts in the light
most favorable to the Lowrys, there remained genuine issues of fact for trial. The District
Court did not say that, even taking the facts in the light most favorable to the Lowrys, the
appellants are not entitled to qualified immunity. Thus, we are here asked to sit in review of
the District Court’s conclusion that there remains a genuine issue of material fact, a
question we do not have jurisdiction to review under Johnson.
The appeal will be dismissed for lack of appellate jurisdiction.
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______________________
TO THE CLERK:
Please file the foregoing Opinion.
BY THE COURT:
/s/Edward R. Becker
Chief Judge
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