Filed: Aug. 20, 2004
Latest Update: Apr. 11, 2017
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-20-2004 Carswell v. Homestead Precedential or Non-Precedential: Precedential Docket No. 03-2290 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Carswell v. Homestead" (2004). 2004 Decisions. Paper 363. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/363 This decision is brought to you for free and open access by the Opinions of the U
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-20-2004 Carswell v. Homestead Precedential or Non-Precedential: Precedential Docket No. 03-2290 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Carswell v. Homestead" (2004). 2004 Decisions. Paper 363. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/363 This decision is brought to you for free and open access by the Opinions of the Un..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-20-2004
Carswell v. Homestead
Precedential or Non-Precedential: Precedential
Docket No. 03-2290
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Carswell v. Homestead" (2004). 2004 Decisions. Paper 363.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/363
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PRECEDENTIAL Before: NYGAARD, McKEE, and
WEIS, Circuit Judges.
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT Filed : August 20, 2004
_____________
No. 03-2290 Charles E. Evans, Esquire (ARGUED)
Evans, Portnoy, Quinn & O’Connor
36 th Floor, One Oxford Centre
TONYA L. CARSWELL, Administratrix 301 Grant Street
of the Estate of GILBERT CARSWELL, Pittsburgh, PA 15219-6401
deceased, on behalf of the Estate of
GILBERT CARSWELL, deceased and Attorneys for Appellant
TONYA L. CARSWELL, Administratrix
of the Estate of GILBERT CARSWELL, David J. MacMain, Esquire (ARGUED)
deceased on behalf of the NEXT OF KIN Montgomery, McCracken, Walker &
of GILBERT CARSWELL, deceased, Rhoads, LLP
123 South Broad Street
Appellant Philadelphia, PA 19109-1090
v. Attorneys for Appellee Frank Snyder
BOROUGH OF HOMESTEAD; MARK Paul D. Krepps, Esquire (ARGUED)
ZUGER, CHIEF OF POLICE OF THE Audrey J. Copeland, Esquire
BOROUGH OF HOMESTEAD; Marshall, Dennehey, Warner, Coleman
FRANK SNYDER and Goggin
18 Campus Blvd., Suite 250
Newtown Square, PA 19070
____________
Attorneys for Appellees Borough of
APPEAL FROM THE UNITED Homestead and Police Chief Mark Zuger
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT ____________
OF PENNSYLVANIA
(D.C. Civ. No. 00-cv-01184 ) OPINION
District Judge: Honorable Robert J.
Cindrich
____________
WEIS, Circuit Judge.
Argued May 11, 2004
1
In suits under 42 U.S.C. § 1983 for court for a protection from abuse order
damages against government officials for (“PFA”) 1 because her husband presented
violation of constitutional rights, the “an immediate and present danger of
Supreme Court recommends that the abuse” to her and their children. Soon
courts rule on the constitutional issue afterward, the Homestead Police went to
before reaching qualified immunity. In
this case, after hearing all of the plaintiff’s
evidence at trial, the District Court 1
Under the Pennsylvania
assumed, but did not decide whether a
Protection from Abuse Act, a plaintiff
constitutional violation had occurred and
may obtain a PFA by (1) agreement with
then granted immunity to a police officer.
the defendant, (2) obtaining a default
In the circumstances of this case, we
judgment or (3) proving the allegation of
conclude that this procedure was not
abuse by a preponderance of the
reversible error and we will affirm on the
evidence at a hearing. See 23 Pa. Cons.
merits of the immunity ruling.
Stat. Ann. § 6107 (West 2001); 23 Pa.
Gilbert Carswell, the plaintiff’s Cons. Stat. Ann. § 6108 (West 2004). At
husband, was fatally shot by a Homestead a minimum, a plaintiff must have a
Borough patrolman in the course of reasonable fear of bodily injury to obtain
apprehension by the police. Plaintiff a PFA. See 23 Pa. Cons. Stat. Ann. §
brought suit pursuant to 42 U.S.C. § 1983 6102 (West 2001). One of the typical
alleging that her husband’s death was the hallmarks of a PFA is the prohibition on
result of constitutional violations by contact between the plaintiff and
Officer Frank Snyder, Police Chief Mark defendant. 23 Pa. Cons. Stat. Ann. §
Zuger, and the Borough of Homestead. 6108(a)(6).
The District Court declined to grant
qualified immunity on summary judgment, The statute requires the
reasoning that factual disputes existed at court to issue a PFA to the police
that time. At trial, after the plaintiff had department with appropriate jurisdiction
rested at the end of her case, the District to enforce the order, as well as the state
Court granted judgment to the defendants police. Police officers may arrest a
as a matter of law pursuant to Fed. R. Civ. defendant for violating a PFA without a
P. 50. warrant upon probable cause, whether or
not the violation occurred in their
The tragic death of Gilbert Carswell
presence. 23 Pa. Cons. Stat. Ann. §
was the culmination of months of domestic
6113(a) (West 2001). A defendant who
discord. After three and one-half years of
violates a PFA and is convicted of
marriage, plaintiff and the decedent-
indirect criminal contempt is subject to
husband became estranged. In July 1999,
imprisonment of up to six months. 23
some four months before the shooting
Pa. Cons. Stat. Ann. § 6114 (b) (West
occurred, the plaintiff applied to the state
2001).
2
the family residence when the husband, because of concern that the husband would
despite the PFA, came to the home and return.
punched the plaintiff.
After the fourth entry which
On July 27, 1999, plaintiff applied occurred at 12:40 a.m., the police again
for a second PFA, asserting that her responded, but the husband escaped. To
husband had ripped the telephone from the protect plaintiff, Officer Shipley remained
wall, broken a table, threatened to hit her in the home, as he had earlier, while other
and sexually assaulted her. In early officers set up a perimeter in the area.
August, the police were called to the home
The husband was spotted at 2:10
when the husband struck the plaintiff in
a.m. by a police officer who radioed the
the face with his fist.
information to the law enforcement
The plaintiff filed an indirect personnel in the area. Two other officers,
criminal complaint on October 10, 1999 responding to the alert, cornered the
because her husband threatened to kick her husband on the porch of a home nearby.
and pistol-whip her brother. One week One of the policemen drew his gun,
later, the police were summoned because confronted the husband, and ordered him
the husband had once again violated the to lie on the floor. He raised his hands in
PFA. In evading apprehension, he a surrender gesture, but then suddenly
rammed a police car. As a consequence, a jumped over the porch railing and ran into
felony warrant was issued for his arrest. the darkness.
On the evening of November 17 On hearing that the husband had
and the early morning hours of November been sighted, Officer Shipley left the
18, 1999, the husband entered the home on family home and joined in the pursuit. He
four separate occasions. He broke a was standing in Boone Way, a narrow
window to gain admittance, ransacked the alley, when he saw the husband jump from
kitchen, and smashed the television set. the roof of a garage on the south side of
On each occasion, the police came to the the roadway. The husband then ran in a
scene, but were unsuccessful in attempts to westerly direction with Shipley in pursuit.
capture him.
At this point, defendant Snyder
After the second incident, plaintiff turned his police car into Boone Way from
and a teenage girl, who was staying at the an intersecting street west of the garage.
house, armed themselves with butcher He saw the husband some 20-30 feet away,
knives. After the third entry, a patrolman running toward the cruiser. Snyder
remained in the house for an hour to stopped his car somewhat diagonally
provide security for the plaintiff. across the alley and got out on the left side,
Moreover, the police decided that their leaving the door open. The headlights were
previous shift would remain on duty on as were the lights in the cruiser’s
together with the oncoming officers overhead bracket directed toward each side
3
of the alley. he would not have pulled his gun from the
holster. He further testified that he
Snyder then went to the right of his
graduated from the police academy before
car about 2-3 feet behind the rear bumper.
being hired, and had attended yearly
Despite orders to stop, the husband
refresher courses provided by the
continued to run toward the police car,
Commonwealth of Pennsylvania.
with hands extended in front of him at
shoulder height, the palms pointed Plaintiff called Dr. R. P. McCauley,
forward. Snyder could see that the a criminologist, to describe proper police
husband’s hands were empty when he procedures. He stated that “knowing that
reached the front of the patrol car. the guy was unarmed, a police officer
should not have drawn his weapon from
As he took a firing position at the
the holster, but should have pushed,
rear of his car, Snyder took off the safety
tackled, or tripped the fleeing suspect.”
on his gun. He fired when, according to
the plaintiff’s expert’s testimony, the Police Chief Zuger testified that the
husband’s chest was 24-36 inches from the manual for Borough officers cautioned
gun’s muzzle and the palm of his left hand them about the use of deadly force and the
was 12-24 inches away from the muzzle. continuum that was to be followed. He
The one shot that was fired entered the also explained that there was no
husband’s chest in the center, struck the requirement that officers become qualified
heart and exited on the extreme left of his to use pepper spray or a baton. Zuger said
back. further that Snyder had been an officer for
14 years and that there had never been a
The Borough did not provide
complaint against him.
Snyder with a baton or pepper spray, nor
were they required. The use of these non- After the plaintiff rested, the
lethal weapons was permitted, but only defendants moved for judgment as a
after an officer had successfully completed matter of law under Fed. R. Civ. P. 50.
applicable familiarization programs. The district judge, referring to Saucier v.
Snyder had not received such training and Katz, 533 U.S. 194 (2001), stated that in
was armed only with a gun. ruling on qualified immunity, he would
view the facts in the light most favorable
Plaintiff introduced portions of
to the plaintiff. He therefore assumed that
Snyder’s discovery deposition into
the shooting was intentional and not
evidence, including a statement that he did
accidental, but that he was not required to
not know that the husband was unarmed.
decide whether the officer’s conduct was
Further, given the facts and evidence that
right or wrong. Rather, the issue was
he had at the time, Snyder believed the
whether it was clear what a reasonable
husband may have had a weapon on his
officer would have done and, if that was
person. Snyder also said that if he had
not established, the policeman was entitled
had non-lethal weapons in his possession,
4
to immunity. In the circumstances present, motion for judgment as a matter of law
the court determined that Officer Snyder against that party with respect to a claim
was entitled to qualified immunity and . . . that cannot under the controlling law
entered judgment in his favor. be maintained . . . without a favorable
finding on that issue.” In ruling on that
The court further ruled that there
motion, the court construes disputed issues
was no evidence to fasten personal liability
of fact in a light most favorable to the non-
on defendant Zuger. As to him, in his
movant. Northview Motors, Inc. v.
official capacity, the grant of immunity to
Chrysler Motors Corp., 227 F.3d 78, 88
Snyder relieved Zuger as well as the
(3d Cir. 2000).
Borough from liability. In addition, the
trial judge found that nothing in the II.
Constitution required a municipality, or its
Use of excessive force by a law
police department, to maintain a list of
enforcement officer is considered a
particularized type of equipment that must
“seizure” under the Fourth Amendment,
be furnished to its officers. The failure to
which prohibits such unlawful action.
provide non-lethal weapons did not rise to
Graham v. Connor, 490 U.S. 386, 395
a constitutional level.
(1989); Tennessee v. Garner, 471 U.S. 1, 7
On appeal, plaintiff argues that the (1985). The test is an objective one, which
District Court erred in granting judgment scrutinizes the reasonableness of the
for defendant Snyder because there were challenged conduct. The facts to be
disputes over material facts and questions examined include “the severity of the
as to his credibility. Moreover, plaintiff crime at issue, whether the suspect poses
asserts that Homestead and Chief Zuger an immediate threat to the safety of the
should not have been automatically officer or others, and whether he is
dismissed because Snyder was granted actively resisting arrest or attempting to
immunity. Snyder defends the District evade arrest by flight.” Graham, 490 U.S.
Court’s ruling and asserts as an alternate at 396. Reasonableness is to be evaluated
basis for affirmance that the plaintiff failed from the “perspective of a reasonable
to establish a violation of a constitutional officer on the scene, rather than with the
right. 20/20 vision of hindsight.” Id.
I. In Tennessee v. Garner, 471 U.S. at
11, the Court phrased the test as follows:
Fed. R. Civ. P. 50(a)(1) provides
“[w]here the officer has probable cause to
that during a jury trial, if “a party has been
believe that the suspect poses a threat of
fully heard on an issue and there is no
serious physical harm, either to the officer
legally sufficient evidentiary basis for a
or to others, it is not constitutionally
reasonable jury to find for that party on
unreasonable to prevent escape by using
that issue, the court may determine the
deadly force.” In Garner, a fleeing teenage
issue against that party and may grant a
5
burglar was shot and killed by a policeman same position as the District Court with
who never attempted to defend his action respect to the admonition in Siegert v.
on any basis other than the need to prevent Gilley, 500 U.S. 226 (1991) and Saucier to
an escape, a justification the Court refused decide the constitutional issue before
to accept. considering qualified immunity. See, e.g.,
Bell v. Johnson, 308 F.3d 594 (6 th Cir.
Here, the District Court did not
2002).
make a specific finding that the plaintiff’s
evidence established a constitutional It is quite understandable that the
violation, but pragmatically “assumed” trial judge was hesitant to rule that a
that for purposes of the Rule 50 motion constitutional violation had occurred on
such a showing had been made. The court the facts in the record at that point when
then moved onto the issue of whether the qualified immunity issue offered a
Officer Snyder was entitled to qualified more sure-footed disposition of the Rule
immunity. 50 motion. Here, unlike Saucier and
Siegert, the case had already been in trial
The court was fully aware of
for a week. Consequently, Snyder had
Saucier’s explanation of the difference
already lost much of the benefit of
between the determination of excessive
qualified immunity – freedom from trial.
force in the constitutional sense and the
See, e.g., Bennett v. Murphy, 274 F.3d
ruling on qualified immunity. Comments
133, 136 (3d Cir. 2002).
made by the trial judge during argument on
the Rule 50 motion leave no doubt on that It is preferable to resolve the
score. That he reviewed the evidence qualified immunity issue at the summary
bearing on the Fourth Amendment issue judgment, or earlier, stage, but if this is not
favorably to the plaintiff was apparent. possible, it remains appropriate to consider
the matter in a Rule 50(a) motion. See,
The judge stated that “the
e.g., Ehrlich v. Town of Glastonbury, 348
constitutional violation requires an
F.3d 48, 49 (2d Cir. 2003); Johnson v.
intentional deprivation of rights and for
Breeden, 280 F.3d 1308, 1317 (11 th Cir.
these purposes then we are going to
2002).
assume that the shooting was intentional.”
Later in the colloquy he commented, “. . . The Court of Appeals in Siegert
I’m not sure that it wasn’t [a situation] approved the grant of immunity on
where he [the officer] was justified in summary judgment, but the Supreme Court
using deadly force.” affirmed by determ ining th at no
constitutional violation had occurred.
Our appellate review of a Rule 50
Seigert, 500 U.S. at 230-35. Saucier held
ruling is plenary and is similar to that in a
that the defendant was entitled to qualified
summary judgment appeal. We review the
immunity, and it reversed the Court of
record as would a District Court. This
Appeals’ decision, which had denied
scope of appellate review places us in the
6
qualified immunity at the summary contrast here, the expert opinion issue has
judgment stage because a material factual not been briefed on appeal. In such a
dispute existed. Saucier, 533 U.S. at 199, setting we are most reluctant to undertake
209. Those procedural differences with an analysis sua sponte. See Garner, 471
the case before us are not dispositive, but U.S. at 22 (“As for the policy of the Police
they are factors that have some bearing. Department, the absence of any discussion
of this issue by the courts below, and the
We believe that the circumstances
uncertain state of the record, preclude any
here, however, are sufficiently unlike those
c o n si d e r a ti o n o f i t s v a l i d it y. ” ).
in Saucier and Siegert that we may
Accordingly, we assume, but do not
proceed directly to the qualified immunity
decide, that plaintiff established a Fourth
issue without ruling preliminarily on the
Amendment constitutional violation and
constitutional violation claim. See
proceed to the immunity issue.
Ehrlich, 348 F.3d at 55-60. We are
hesitant to hold that the jury could find
excessive force based on the record here.
III.
An officer sued for a violation of
It appears to us that without the
constitutional rights may be entitled to the
testimony of Dr. McCauley, the plaintiff
defense of qualified immunity, that is, an
failed to establish a constitutional
exemption from trial as well as from
violation. See Cowan ex rel. Estate of
liability for the alleged wrong. Saucier,
Cooper v. Breen, 352 F.3d 756 (2d Cir.
533 U.S. at 200; Garner, 471 U.S. 1;
2003) (expert opinion was part of
Harlow v. Fitzgerald, 457 U.S. 800 (1982).
plaintiff’s excessive force record). We
The formula for analyzing a qualified
have serious doubts about the admissibility
immunity claim is a several stage process.
of his opinion that Snyder should not have
First, the court is to decide whether a
drawn his gun based on the expert’s
constitutional violation has occurred, and
assumption that the officer knew the
then it must “‘proceed to determine
husband was unarmed.
whether that right was clearly established
We recognize that expert opinions at the time of the alleged violation.’”
can be redacted from the record on appeal Wilson v. Layne, 526 U.S. 603, 609 (1999)
where they are found to be inadmissible (quoting Conn v. Gabbert,
526 U.S. 286,
and the court may then proceed to enter 290 (1999)). A defendant “may . . . be
judgment based on the remaining shielded from liability for civil damages if
evidence. Weisgram v. Marley Co., 528 [his] actions did not violate ‘clearly
U.S. 440 (2000). In Weisgram, however, established statutory or constitutional
the admissibility of the expert testimony rights of which a reasonable person would
had been the focal point of appeal and had have known.’” Hope v. Pelzer, 536 U.S.
been thoroughly briefed and argued. In 730, 739 (2002) (quoting Harlow, 457
7
U.S. at 818). City of Riviera Beach, 208 F.3d 919, 926-
27 (11th Cir. 2000)). Furthermore, “in
“For a constitutional right to be
addition to the deference officers receive
clearly established, its contours ‘must be
on the underlying constitutional claim” in
sufficiently clear that a reasonable official
excessive force cases, “qualified immunity
would understand that what he is doing
can apply in the event the mistaken belief
violates that right.’” Id. (quoting
was reasonable.” Id. We have followed
Anderson v. Creighton, 483 U.S. 635, 640
this doctrine in excessive force claims
(1987)). See also Groh v. Ramirez, ___
where the police shot a citizen. See, e.g.,
U.S. ___, 124 S. Ct. 1284 (2004)
Bennett, 274 F.3d 133; Curley v. Klem,
(explaining that whether immunity is
298 F.3d 271 (3d Cir. 2002); Henry v.
available depends on whether the
Perry, 866 F.2d 657 (3d Cir. 1989).
c o n s t it u t io n a l right w a s c l e ar ly
established.); Saucier, 533 U.S. at 202 The importance of the factual
(noting that the relevant inquiry is background raises the question of whether
“whether it would be clear to a reasonable the decision as to the applicability of
officer that his conduct was unlawful in qualified immunity is a matter for the court
the situation he confronted.”). or jury. The Courts of Appeals are not in
agreement on this point. We held in Doe
Once these requirements are found
v. Groody, 361 F.3d 232, 238 (3d Cir.
to have been satisfied, the inquiry proceeds
2004), that qualified immunity is an
to another, closely related issue, that is,
objective question to be decided by the
whether the officer made a reasonable
court as a matter of law. See also
mistake as to what the law requires.
Bartholomew v. Pennsylvania, 221 F.3d
Saucier emphasized that the inquiry for
425, 428 (3d Cir. 2000). The jury,
qualified immunity eligibility is distinct
however, determines disputed historical
from establishment of a constitutional
facts material to the qualified immunity
violation of excessive force. As the Court
question. See Sharrar v. Felsing, 128 F.3d
explained, “[t]he concern of the immunity
810, 828 (3d Cir. 1997). District Courts
inquiry is to acknowledge that reasonable
may use special interrogatories to allow
mistakes can be made as to the legal
juries to perform this function. See, e.g.,
constraints on particular police conduct
Curley, 298 F.3d at 279. The court must
. . . [i]f the officer’s mistake as to what the
make the ultimate determination on the
law requires is reasonable, however, the
availability of qualified immunity as a
officer is entitled to the immunity
matter of law. See Curley, 298 F.3d at
defense.” Saucier, 533 U.S. at 205.
279; Sharrar, 128 F.3d at 828 (citing
Qualified immunity operates to Hunter v. Bryant, 502 U.S. 224 (1991)).
“protect officers from the sometimes ‘hazy Several other Courts of Appeals have
border between excessive and acceptable
force.’” Id. at 206. (quoting Priester v.
8
adopted a standard similar to ours.2 In conduct would have been clear, we must
contrast, other Courts of Appeals have then determine whether he made a
held that District Courts may submit the reasonable mistake. “[W]here there is ‘at
issue of qualified immunity to the jury. 3 least some significant authority’ that lends
support of the police action, we have
All of the events leading up to the
upheld qualified immunity even while
pursuit of the suspect are relevant. See
deciding that the action in question
Abraham v. Raso, 183 F.3d 279, 292 (3d
violates the Constitution.” Groody, 361
Cir. 1999). The question is whether, in the
F.3d at 243 (internal citation omitted)
circumstances here, it would have been
(quoting Leveto v. Lapina, 258 F.3d 156,
clear to a reasonable officer that Snyder’s
166 (3d Cir. 2001)). See also In re City of
conduct was unlawful in the situation he
Philadelphia Litig., 49 F.3d 945, 970 (3d
confronted. If it would not have been
Cir. 1995).
clear, then qualified immunity is
appropriate. A survey of the circumstances
known to Snyder is necessary to properly
If the wrongfulness of the officer’s
apply this test. After he arrived on duty as
the officer in charge he had been given
2
See, e.g., Rivera-Jimenez reports on the events at the plaintiff’s
v. Pierluisi, 362 F.3d 87, 95 (1 st Cir. home. He was aware that the husband had
2004); Stephenson v. Doe,
332 F.3d 68, violated the PFA four times within the past
80-81 (2d Cir. 2003); Knussman v. several hours and that it was thought
Maryland,
272 F.3d 625, 634 (4 th Cir. prudent to have an officer remain in the
2001); Warlick v. Cross,
969 F.2d 303, house to ease the fears of plaintiff, who
305 (7 th Cir. 1992) Johnson v. Breeden, had armed herself with a knife. Snyder
280 F.3d 1308, 1318 (11 th Cir. 2002). was also in radio contact with the other
officers who were in pursuit of the
3
See, e.g., McCoy v. husband.
Hernandez, 203 F.3d 371, 376 (5 th Cir.
Before the shooting occurred, the
2000); Fisher v. City of Memphis, 234
husband had escaped from an armed
F.3d 312, 317 (6 th Cir. 2000); Turner v.
policeman and the chase was still
Arkansas Ins. Dept., 297 F.3d 751, 754
underway with a number of officers in
(8 th Cir. 2002); Ortega v. O’Connor, 146
pursuit. The husband was running at full
F.3d 1149, 1155-56 (9 th Cir. 1998);
speed directly toward Snyder’s police
Maestas v. Lujan, 351 F.3d 1001, 1007-8
cruiser. Ignoring orders to stop, the
(10th Cir. 2003). But see Peterson v. City
husband kept charging at the officer who
of Plymouth, 60 F.3d 469, 475 (8 th Cir.
held his fire until the muzzle of his gun
1995)(explaining that qualified immunity
was two feet away from the husband.
is ultimately a question of law and that
Although after the shooting it was
“[t]he jury’s role is limited to settling
determined that the husband was unarmed,
disputes as to predicate facts”).
9
Snyder denied that he knew that at the time day. What constitutes ‘reasonable’ action
and there was no evidence to the contrary. may seem quite different to someone
facing a possible assailant than to someone
analyzing the question at leisure.”
In these circumstances a reasonable
officer could believe that firing at the We are not persuaded that Officer
suspect was a proper response. A Snyder made a mistake in the use of his
reasonable officer would not be expected weapon, but even if it was an error, it was
to take the risk of being assaulted by a such as a reasonable officer could have
fleeing man who was so close that he made. Consequently, the District Court’s
could grapple with him and seize the gun. entry of judgment in favor of defendant
Our recitation of these events is a Snyder will be affirmed.
discussion in slow motion of an incident
IV.
that took place in a matter of seconds.
Officer Snyder had no time for the calm, Having held that Officer Snyder
thoughtful deliberation typical of an was entitled to qualified immunity, the
academic setting. District Court determined that it was
obligated to grant judgment as a matter of
The plaintiff’s expert, Professor
law in favor of the Borough and Chief
McCauley, thought that Snyder should not
Zuger. We reach the same conclusion, but
have pulled his gun but rather should have
do so for different reasons.
chosen to tackle or otherwise physically
subdue the suspect. The expert’s opinion Because as a predicate to its
did not refer to the question of mistake and decision on immunity, the court had
consequently there is no dispute of fact. assumed that Snyder had committed a
Curley, 298 F.3d at 279. In any event, this cons titutional viola tion, we must
is a question of law to be decided by the determine whether the Borough or police
court as a matter of law, Groody, 361 F.3d chief were liable for that violation. Based
at 238, rather than by expert opinion. See on our review of the record, we conclude
Peterson v. City of Plymouth, 60 F.3d 469, that the plaintiff failed to present evidence
475 (8 th Cir. 1995) (expert opinion not fact from which a reasonable jury could find
based but only a legal conclusion). liability on the part of these defendants.
We conclude that at most Synder’s A municipality cannot b e
conduct was a mistake that was reasonable responsible for damages under section
under the circumstances. As Smith v. 1983 on a vicarious liability theory,
Freland, 954 F.2d 343, 347 (6 th Cir. 1992), Monell v. New York City Dept. of Soc.
said, “[w]e must never allow the Servs.,
436 U.S. 658, 694-95 (1978), and
theoretical, sanitized world of our “can be found liable under § 1983 only
imagination to replace the dangerous and where the municipality itself causes the
complex world that policemen face every constitutional violation at issue.” City of
10
Canton v. Harris, 489 U.S. 378, 385 489 U.S. at 385).
(1989). District Courts must review
The record here fails to establish
c la im s of m unicip al li a b ility
deliberate indifference or causation. Chief
“independently of the section 1983 claims
Zuger testified that officers attend annual
against the individual police officers.”
in-service courses, where they study,
Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d
among other subjects, relevant court
Cir. 1996); Fagan v. City of Vineland, 22
opinions. Officer Snyder testified that he
F.3d 1283, 1294 (3d Cir. 1994).
was present at these sessions. Zuger
The plaintiff’s municipal liability updated the Homestead police manual in
claim can be divided into two categories: 1997 and directed his officers to become
(1) failure to properly train its police familiar with the updated policy manual,
officers in the constitutional use of deadly which covered the “continuum of force.”
force and (2) failure to equip police
This evidence did not establish a
officers with alternatives to lethal
lack of training on the use of deadly force
weapons.
that amounted to a deliberate indifference,
A plaintiff must identify a nor does it demonstrate a pattern of
municipal policy or custom that amounts underlying constitutional violations that
to deliberate indifference to the rights of should have alerted Homestead to an
people with whom the police come into inadequate training program. The record
contact. City of Canton, 489 U.S. at 388. does not meet the high burden of proving
This typically requires proof of a pattern of deliberate indifference, nor does it show
underlying constitutional violations. Berg that Homestead’s actions caused a
v. County of Allegheny, 219 F.3d 261, 276 constitutional violation. We conclude that
(3d Cir. 2000). Although it is possible, the plaintiff failed to present evidence
proving deliberate indifference in the from which a reasonable jury could find
absence of such a pattern is a difficult task. municipal liability.
See id.
Furthermore, we have never
In addition to proving deliberate recognized municipal liability for a
indifference, a plaintiff must also constitutional violation because of failure
demonstrate that the inadequate training to equip police officers with non-lethal
caused a constitutional violation. See weapons. We decline to do so on the
Grazier v. City of Philadelphia, 328 F.3d record before us. In Plakas v. Drinski, 19
120, 124-25 (3d Cir. 2003). There must be F.3d 1143, 1150-51 (7 th Cir. 1994), the
“a direct causal link between a municipal Court of Appeals for the Seventh Circuit
policy or custom and the alleged rejected the claim that a county had
constitutional deprivation.’” Brown v. violated a suspect’s constitutional rights by
Muhlenberg Township, 269 F.3d 205, 214 failing to equip its police officers with
(3d Cir. 2001) (quoting City of Canton, alternatives to deadly force. In holding
11
that the constitution does not mandate the point to something the city ‘could have
types of equipment a police department done’ to prevent the unfortunate incident.”
must provide to its officers, the court Permitting a lesser standard than deliberate
explained: indifference would “engage the federal
courts in an endless exercise of second-
“We do not think it is wise
guessing municipal employee training
policy to permit every jury
programs. This is an exercise we believe
in these cases to hear expert
the federal courts are ill suited to
testimony that an arrestee
undertake as well as one that would
would have been uninjured
implicate serious questions of federalism.”
if only the police had been
City of Canton, 489 U.S. at 392.
able to use disabling gas or
a capture net or a taser (or Mandating the type of equipment
even a larger number of that police officers might find useful in the
police officers) and then performance of their myriad duties in
decide that a municipality is frequently unanticipated circumstances is
liable because it failed to a formidable task indeed. It is better
buy this equipment (or assigned to municipalities than federal
increase its police force). courts.
There can be reasonable
We conclude that the judgment as a
debates about whether the
matter of law in favor of the Borough and
Constitution also enacts a
Chief Zuger as well as that in favor of
code of criminal procedure,
Snyder must be affirmed.
but we think it is clear that
the Constitution does not
enact a police
Estate of Carswell v. Borough of
administrator’s equipment
Homestead et al., No. 03-2290
list.” Plakas, 19 F.3d at
1150-51 (footnote omitted). McKee, J., concurring as to parts I, II, and
III and dissenting as to part IV.
See also Salas v. Carpenter, 980 F.2d 299,
310 (5 th Cir. 1992). I join Parts I, II and III of the
majority opinion because I agree that
The Supreme Court has not yet
Officer Snyder is entitled to qualified
ruled in a case similar to Plakas, but
immunity as a matter of law. I also agree
language in the failure-to-train cases is
that the District Court did not err
pertinent. In City of Canton, 489 U.S.
analytically in assuming arguendo that a
392, we read: “In virtually every instance
constitutional violation had occurred.4
where a person has had his or her
constitutional rights violated by a city
4
employee, a § 1983 plaintiff will be able to Cf. Grabowski v. Brown,
922 F.2d 1097, 1110 (3d Cir. 1991), cert.
12
However, I must respectfully dissent from citation omitted). We evaluate whether an
part IV of the majority opinion because I officer’s conduct was reasonable, and thus
think that, viewed in the light most whether the officer is entitled to qualified
favorable to plaintiff, the evidence immunity, based upon the officer’s
establishes a prima facie case of liability perspective at the time he/she acted.
against the Borough of Homestead and Graham v. Connor, 490 U.S. 386, 396
against Homestead Police Chief M ark (1989). We thereby avoid the inequities
Zuger in his official capacity (collectively that might result from the 20/20 vision that
hereafter referred to as the “Borough”).5 comes with hindsight. Id.
I. Here, however, the usual concerns
about judging an officer’s use of force
This case illustrates all too clearly
from the perspective of hindsight are not
the daily reality in which police officers
present because our analysis has the
often have to make split-second, life-and-
benefit of Officer Snyder’s candid
death, decisions. The doctrine of qualified
testimony. He testified that he saw
immunity recognizes that reality and
nothing in Carswell’s hands as Carswell
protects police from liability that might
ran toward him. App. at 1061a.6 He was
otherwise arise from the “sometimes hazy
then asked, “Had you had non-lethal
border between excessive and acceptable
weapons, you would not have pulled your
force[.]” Saucier v. Katz, 533 U.S. 194,
gun [as Carswell ran towards you], am I
206 (2001) (internal quotation marks and
correct?” He responded, “Yes.” Id. at
1064a. That testimony would allow a jury
denied sub nomine Borough of Roselle v. to conclude that Officer Snyder used
Brown, 501 U.S. 1218 (1991) (finding it excessive force in fatally shooting
“illogical and contrary to the interests of Carswell and that he did so knowingly.
judicial economy” that this court could not
directly hold that “a constitutional right As the majority ably discusses, the
allegedly violated could not have been fact that a jury could conclude that Snyder
clearly established because it has not been used excessive force to subdue Carswell
recognized”). Further, I share the majority’s and thus violated Carswell’s Fourth
skepticism regarding the admissibility of Dr. Amendment rights is not enough, standing
McCauley’s expert testimony. See Maj. Op. alone, to deprive him of qualified
at 15-16; see also Peterson v. City of immunity. It is, however, enough to
Plymouth,
60 F.3d 469, 475 (8th Cir. 1995). support a finding that the use of excessive
5 force resulted from the Borough’s policy
Because the claim against
Zuger in his official capacity is
tantamount to a claim against the 6
The officer was asked,
Borough because it employs him, see “What you clearly saw is they were empty,
Hafer v. Melo, 502 U.S. 21, 25 (1991), the hands?” and he answered, “Yes.” App. at
we deal with both claims at once. 1061a.
13
and custom of providing police officers Harris, 489 U.S. 378, 385-88 (1989). A
only with guns, i.e. lethal weapons.7 The municipality cannot, however, be held
jury could conclude from Snyder’s liable for the alleged constitutional
testimony that, at the very moment he fired deprivation unless “there is a direct causal
the fatal shot, he believed that he was link between a municipal policy or custom
using excessive deadly force where non- and the [] deprivation.” Id. at 385.9 My
lethal force would suffice. Indeed, if the colleagues believe that “the record here
jury accepted his testimony as true, it fails to establish deliberate indifference or
would have been hard to conclude causation” as a matter of law. Maj. Op. at
anything else. The jury could therefore 26. However, “whether or not a
reason that the officer had to resort to defendant’s conduct amounts to deliberate
excessive force solely because the indifference has been described as a
Borough left him no alternative but to use
his gun in a situation where non-lethal
force could reasonably have been officials . . . so permanent and well settled as
employed to subdue Carswell. to virtually constitute law.” Berg v. County
of Allegheny, 219 F.3d 261, 275 (3d Cir.
A. 2001) (internal quotation marks and citation
omitted). “The policy or adopted custom
To establish a municipality’s
that subjects a municipality to § 1983
liability under § 1983, the plaintiff must liability may relate to the training of police
show that plaintiff’s constitutional rights officers. A municipality’s failure to train its
were violated by the municipality’s police officers can subject it to liability,
deliberate indifference as reflected in its however, only where it reflects a deliberate
policy or custom.8 See City of Canton v. or conscious choice by the municipality – a
policy as defined in Supreme Court cases.”
Brown v. Muhlenberg Township, 269 F.3d
7
The qualified immunity of 205, 215 (3d Cir. 2001) (internal quotation
the police officers and the liability of the marks, brackets and citation omitted).
Borough are two separate and distinct issues,
9
as the majority explains. See Maj. Op. at 25 A municipality like the
(citing Kneipp v. Tedder, 95 F.3d 1199, Borough “may . . . be sued directly if it is
1213 (3d Cir. 1996) and Fagan v. City of alleged to have caused a constitutional tort
Vineland,
22 F.3d 1283, 1294 (3d Cir. through a policy statement . . . officially
1994)). adopted and promulgated by that body’s
officers.” City of St. Louis v. Praprotnik,
8
“Policy is made when a 485 U.S. 112, 121 (1988) (internal quotation
decision maker possessing final authority to marks and citation omitted). Alternatively, a
establish municipal policy with respect to plaintiff can establish a causal link between
the action issues an official proclamation, the alleged constitutional violation and a
policy, or edict.” Kneipp, 95 F.3d at 1212 municipality’s custom or practice.
(internal quotation marks and citation Muhlenberg Township, 269 F.3d at 214-15.
omitted). “Customs are practices of state
14
classic issue for the fact finder and a elaborated upon this in Board of County
factual mainstay of actions under § 1983.” Comm’rs of Bryan County v. Brown, 520
A.M . v. Luzerne Cty. Juvenile Detention U.S. 397 (1997). It explained:
Ctr., 372 F.3d 572, 588 (3d Cir. 2004)
In leaving open in Canton
(internal quotation marks, citation and
the poss ibility that a
brackets omitted). Given the evidence
plaintiff might succeed in
here, that should have been an issue for the
carrying a failure-to-train
jury to decide and the Borough was
claim without showing a
therefore not entitled to judgment as a
pattern of constitutional
matter of law under Rule 50.
violations, w e s im ply
In Brown v. Muhlenberg Township, hypothesized that, in a
269 F.3d 205, 215 (3d Cir. 2001), we narrow range of
quoted City of Canton, noting: circumstances, a violation of
federal rights may be a
It may seem contrary to
highly predictable
common sense to assert that
consequence of a failure to
a municipality will actually
equip law enforcement
have a policy of not taking
officers with specific tools
reasonable steps to train its
to hand le recu rring
employees. But it may
situations. The likelihood
happen that in light of the
that the situation will recur
duties assigned to specific
and the predictability that an
officers or employees the
officer lacking specific tools
need for more or different
to handle that situation will
training is so obvious, and
violate citizens’ rights could
the inadequacy so likely to
justify a finding that
result in the violation of
policymakers’ decision not
constitutional rights, that the
to train the officer reflected
policymakers of the city can
“deliberate indifference” to
reasonably be said to have
the obvious consequence of
been deliberately indifferent
the policymakers’ choice –
to the need.
namely, a violation of a
specific constitutional or
statutory right. The high
I believe that a jury could reasonably
degree of predictability may
conclude that this record establishes such
also support an inference of
deliberate indifference because the
c a usa tion – th at th e
Borough’s training left Officer Snyder
municipality’s indifference
with no reasonable alternative to the use of
led directly to the very
deadly force. The Supreme Court
15
consequence that the police department, and all police
was so predictable. officers in the Borough were required to
familiarize themselves with it and attest to
Id. at 409-10.
having read it. It prescribes an official
We applied this teaching in Berg v. policy of “progressive force” for the
County of Allegheny, 219 F.3d 261 (3d Borough’s police, stating that “[t]he use of
Cir. 2000). There, we reviewed the force will be progressive in nature, and
District Court’s grant of summary may include verbal, physical force, the use
judgment in favor of the defendants in a of non-lethal weapons or any other means
suit alleging a violation of civil rights as a at the officer’s disposal, provided they are
result of the plaintiff’s arrest on an reasonable under the circumstances.” App.
erroneous warrant. Plaintiff argued that at 998a. Chief Zuger testified further that
the defendant county maintained a “flawed “[t]he policy of the Homestead Police
warrant creation practice and poor training Department is to use only the amount of
procedures.” Id. at 275 (internal quotation force which is necessary in making an
marks omitted). Warrants were generated arrest or subduing an attacker. In all
“based on a single datum – the criminal cases, this will be the minimum amount of
complaint number . . . [with] no other force that is necessary.” App. at 1001a
information [and] no check . . . to guard (emphasis added).10
against the kind of mistake [that was]
However, as the majority notes, the
made. Nor [were] there procedures that
Borough provided only guns to its officers.
would allow [an] officer . . . who suspects
It did not equip them with any non-lethal
an error to confirm that suspicion.” Id. We
weapons. Rather, an officer had to request
concluded that the “failure to provide
any non-lethal weapon he/she might wish
protective measures and failsafes . . .
to carry and the request had to be approved
seems comparable to ‘a failure to equip
by Zuger. If the request was approved, the
law enforcement officers with specific
officer then had to undergo additional
tools to handle recurring situations’” and
training with the new weapon and become
reversed the grant of summary judgment
certified to use it. App. at 986a-87a.
for the municipality. Id. at 277.
Although Chief Zuger was not asked about
B. training in lethal force, the fact that
An even more compelling prima
facie case of municipal liability under § 10
Indeed, a municipal
1983 was established here than in Berg.
policy that authorized and condoned the
Police Chief Zuger compiled the policy
use of deadly force when an officer
manual for the Boroug h’s po lice
reasonably believed non-lethal force to
department pursuant to his authority as
be sufficient would certainly run afoul of
police chief. App. at 984a. The manual
the Constitution. Cf. Canton, 489 U.S. at
contains the Borough’s official policy for
390 n.10.
16
officers were equipped with a gun and had in these cases to hear expert
to be trained in any approved non-lethal testimony that an arrestee
weapon they may have carried certainly would have been uninjured
supports the inference that the Borough if only the police had been
only trained officers in the use of lethal able to use disabling gas or
force unless the Borough approved an a capture net or a taser (or
individual request for a non-lethal weapon. even a larger number of
police officers) and then
It is obviously foreseeable that an
decide that a municipality is
officer who is equipped only with a lethal
liable because it failed to
weapon, and trained only in the use of
buy this equipment (or
lethal force, will sooner or later have to
increase its police force).
resort to lethal force in situations that
There can be reasonable
officer believes could be safely handled
debates about whether the
using only non-lethal force under the
Constitution also enacts a
Borough’s own “progressive force” policy.
code of criminal procedure,
This record therefore presents that “narrow
but we think it is clear that
range of circumstances, [where] the
the Constitution does not
violation of federal rights [is] a highly
enact a polic e
predictable consequence of a failure to
administrator’s equipment
equip law enforcement officers with
list.
specific tools to han dle recurring
situations.” Brown, 520 U.S. at 409.
My colleagues state that “we have Id. at 1150-51 (footnote omitted) (quoted
never recognized municipal liability for a in Maj. Op. at 27-28). However, defining
constitutional violation because of failure our inquiry in terms of whether the
to equip police officers with non-lethal Co nstitution creates an approved
weapons.” Maj. Op. at 27. I agree. “equipment list” for police is both
However, we have never before addressed misleading and counterproductive. That is
that precise issue. Accordingly, our failure simply not the issue, and that formulation
reject that theory of recovery is neither of the issue obfuscates our inquiry rather
relevant nor precedential. I am also far than advancing it. Given the duties of a
less impressed with the analysis of the police officer, it was certainly foreseeable
Court of Appeals for the Seventh Circuit that the Borough’s policy of equipping
in Plakas v. Drinski, 19 F.3d 1143 (7th officers only with guns and training them
Cir. 1994) than my colleagues. As the only in the use of deadly force would
majority notes, the court there stated: sooner or later result in the use of
unjustifiable deadly force.
We do not think it is wise
policy to permit every jury Moreover, Chief Zuger’s testimony
17
dispels the fanciful notion that a finding of training program.” Maj. Op. at 26-27.
liability here would potentially result in a However, plaintiff never argued that
constitutionally mandated “equipment liability should be imposed on the basis of
list.” He testified that an officer could a failure to train in the use of deadly force.
seek approval for “any” non-lethal Rather, plaintiff argues that the Borough
weapon, including mace, pepper spray, a should be liable because its policy of
baton, etc. 1020a (emphasis added). The requiring training only in using deadly
result is, therefore, not a mandated force and equipping officers only with a
equipment list, but a mandated alternative lethal weapon, caused Officer Snyder to
to using deadly force in those situations use lethal force even though he did not
where an officer does not believe it is think it reasonable or necessary to do so.
necessary to use deadly force. We must
Moreover, as I have already noted,
not forget that “[o]ne of the main
given the duties of a police officer, it does
purposes of nonlethal, temporarily
not require a “pattern of underlying
incapacitating devices such as pepper
constitutional violations” to alert the
spray is to give police effective options
Borough to the fact that its policies would
short of lethal force that can be used to
cause police to unnecessarily use deadly
take custody of an armed suspect who
force. Rather, as I have argued above, this
refuses to be lawfully arrested or
record satisfies the teachings of Brown
detained.” Gaddis v. Redford Township,
because plaintiffs have established that
364 F.3d 763, 774 (6th Cir. 2004).
“narrow range of circumstances, [where] a
M oreover, interpreting the Fourth
violation of federal rights may be a highly
Amendment as requiring municipalities to
predictable consequence of a failure to
provide reasonable alternatives to the use
equip law enforcement officers with
of deadly force imposes no undue burden.
specific tools to handle recurring
In fact, here, it would do nothing more
situations.” Brown, 520 U.S. at 409.
than effectuate the Borough’s own
Thus, even without a pattern of abuse,
announced policy of “progressive force.”
“t]he likelihood that the situation will
My colleagues imply that the recur and the predictability that an officer
Borough can not be liable under a failure lacking specific tools to handle that
to train theory because its police officers situation will violate citizens’ rights could
were properly trained in the use of deadly justify a finding that policymakers’
force. The majority states: “This evidence decision . . . reflected ‘deliberate
did not establish a lack of training on the indifference’ to the obvious consequence
use of deadly force that amounted to a of the policymakers’ choice.” Id.
deliberate indifference, nor does it
In Berg, we allowed municipal
demonstrate a pattern of underlying
liability under § 1983 because procedures
constitutional violations that should have
were inadequate to guard against someone
alerted [the Borough] to an inadequate
being arrested as the result of an
18
erroneously issued warrant and municipal
defendants “employed a design where the
slip of a finger could result in wrongful
arrest and imprisonment[.]” 219 F.3d at
277. Reckless indifference that causes the
fatal use of excessive force must surely be
as actionable as reckless indifference
resulting in “the slip of a finger” that
merely causes an arrest.11
II.
Thus, for the reasons I have set
forth above, I must respectfully dissent
from the majority opinion insofar as it
affirms the District Court’s grant of
judgment as a matter of law under Fed. R.
Civ. P. 50 for the Borough. I believe
plaintiff is entitled to a new trial solely
against the Borough, and I would remand
to the District Court for that purpose.
11
I also note that in Berg, we
did not express a concern that holding
municipalities liable for arrests that resulted
from nothing more than “the slip of a finger”
would result in a constitutionally mandated
set of procedures that municipalities would
have to follow when obtaining arrest
warrants.
19
