Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-25-2006

Duong v. Telford
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2902




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-2902


                                  PHONG DUONG;
                                 THUY THI BUI, H/W

                                           v.

                           TELFORD BOROUGH;
                  TELFORD BOROUGH POLICE DEPARTMENT;
                        DANIEL S. FOX, Police Officer

                                                      Daniel S. Fox,
                                                                 Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         D.C. Civil Action No. 03-cv-02985
                          (Honorable Mary A. McLaughlin)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 27, 2006
       Before: SCIRICA, Chief Judge, NYGAARD and ALARCÓN*, Circuit Judges

                                 (Filed: May 25, 2006)


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

   *
    The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
       Officer Daniel Fox appeals the District Court’s denial of summary judgment on his

qualified immunity defense to Phong Duong’s excessive force claim under 42 U.S.C. §

1983, holding factual disputes allowed Duong to present his case to a jury. We will

dismiss for lack of jurisdiction.

                                              I.

       Because we write only for the benefit of the parties, a brief recitation of the facts

will suffice. On May 10, 2001, Officer Daniel Fox of the Telford Borough police entered

Appellee Phong Duong’s home in response to a call that three suspicious Asian men had

entered Duong’s house. Fox heard shouting from inside the house. He opened the door

and saw Duong on his back with an Asian man on top of him. Three other Asian men

were in the house, and a woman was standing near the steps. As Fox called for backup,

all of the men ran to the back of the house. Fox believed he had walked in on a violent

domestic dispute (it was in fact a robbery in progress) and did not know the identity of the

homeowner.

       Duong, holding a knife, chased the other men to the back of the house. Fox

followed them. Fox testified that he yelled “Police, stop,” and seeing Duong with a knife

in his right hand, told Duong to drop the knife. Duong testified that he did not see Fox or

hear anything before he was shot by Fox.

       Amid shouting, Duong heard his wife say in Vietnamese that the police were there

and that he should sit down. The parties dispute Duong’s position and movements at this



                                              2
point. Duong’s expert stated he was thirteen feet away from Fox when he was shot.

Duong’s son had measured the distance as ten feet.

       Fox testified he fired his weapon because he thought he was going to be attacked.

He stated Duong turned toward him, began walking toward him, and lowered his body

posture—as if Duong were crouching and ready to leap. Fox described his reaction as a

reflex: he did not aim or point the gun in any way.

       Duong testified that Fox shot him the moment he sat down. According to Duong,

he was sitting with his knees bent and with his buttocks resting on the back of his shoes.

He stated he was holding the knife away from his body—to the right, away from Fox—in

the direction of the three Asian men. Duong’s expert stated the bullet passed through

Duong’s outstretched right arm, which was pointing to the right wall, and away from Fox.

       When Fox shot Duong, Duong fell to the floor and dropped his knife. He told Fox

he was the homeowner. Fox called for an ambulance and held the other men at gunpoint

until backup arrived. Duong was hospitalized and the other men were arrested.

                                            II.

                                            A.

       Generally, we may hear appeals only from “final decisions” of the district courts.

See 28 U.S.C. § 1291. Although a District Court’s denial of summary judgment is not

normally a final order within the meaning of § 1291, we will hear appeals if the District

Court’s decision meets the criteria of the collateral order doctrine. In qualified immunity



                                             3
cases, we are especially cognizant of the need for resolution at the earliest possible stage

of litigation. See Curley v. Klem, 

, 277 (3d Cir. 2002).

       But “the imperative to decide qualified immunity issues early in the litigation is in

tension with the reality that factual disputes often need to be resolved before determining

whether the defendant’s conduct violated a clearly established constitutional right.” 

An order denying a defendant’s motion for summary judgment when the question

centers on qualified immunity can be appealed if the defendant is a public official, and “if

the issue on appeal is whether the facts alleged by the plaintiff demonstrate a violation of

clearly established federal law, not which facts the plaintiffs might be able to prove at

trial.” Rivas v. City of Passaic, 

, 191 (3d Cir. 2004) (quoting Johnson v.

Jones, 

, 307 (1995)). When there is a disputed question of material fact

“relevant to the immunity analysis,” granting summary judgment for the defendant on the

basis of qualified immunity “will be premature.” 

. Although “we

lack jurisdiction to consider whether the district court correctly identified the set of facts

that the summary judgment record is sufficient to prove,” we nonetheless “possess

jurisdiction to review whether the set of facts identified by the district court is sufficient

to establish a violation of a clearly established constitutional right.” 

(quoting Ziccardi v. City of Philadelphia, 

, 61 (3d Cir. 2002)).

       Accordingly, to the extent Fox asks us to review whether the District Court

“correctly identified the set of facts that the summary judgment record is sufficient to



                                               4
prove,” we lack jurisdiction. As Fox acknowledges, “the Trial Court set forth facts relied

upon to deny qualified immunity.”

                                              B.

       The only questions properly before us are whether the facts identified by the

District Court are sufficient to establish a violation of Duong’s Fourth Amendment rights,

and whether those rights were “clearly established.”

       We exercise plenary review of the District Court’s denial of summary judgment.

See Creque v. Texaco Antilles Ltd., 

, 152 (3d Cir. 2005) (citing 

). Summary judgment is proper when the evidence shows “that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law.” Fed. R. Civ. P. 56 (c). We view the inferences to be drawn from the

underlying facts in the light most favorable to Duong. See Kopec v. Tate, 

,

775 (3d Cir. 2004). When Duong’s allegations conflict with those of Fox, we take

Duong’s allegations as true if supported by proper proofs. See 

a claim for excessive force under the Fourth Amendment, Duong must

show “that a ‘seizure’ occurred and that it was unreasonable.” 

.

Fox does not dispute seizure. The only question here is whether the facts cited by the

District Court were sufficient for a jury to find that seizure unreasonable.

       Under the reasonableness prong, a court must determine whether, “under the

totality of the circumstances, the officer[’s] actions are objectively reasonable in light of

the facts and circumstances confronting [him], without regard to [his] underlying intent or

                                              5
motivations.” 

v. Connor, 

, 397 (1989)) (internal

citations omitted). In assessing reasonableness, a court may consider “the severity of the

crime at issue, whether the suspect poses an immediate threat to the safety of the officers

or others, and whether he is actively resisting arrest or attempting to evade arrest by

flight.” 

A court might also take into account “the possibility that the

persons subject to the police action are violent or dangerous, the duration of the action,

whether the action takes place in the context of effecting an arrest, the possibility that the

suspect may be armed, and the number of persons with whom the police officers must

contend at one time.” 

(citing Sharrar v. Felsing, 

, 822 (3d Cir.

1997)).

       The “objective reasonableness” test of an officer’s actions is meant to give

“deference to the judgment of reasonable officers on the scene,” and we are “cautioned

against the 20/20 vision of hindsight.” Saucier v. Katz, 

, 205 (2001). Fox

argues the District Court erred by not employing this standard when it listed Duong’s

“surrendering position” as a fact from which the jury could infer a Fourth Amendment

violation. Fox contends he had no way of knowing Duong “intended to surrender by

squatting down on his heels,” and thus did not have this information at his disposal.

Appellant Br. at 21. But the District Court did not hold Duong’s intent was a factor the

jury could take into account. Rather, it held Duong’s description of his physical




                                              6
position—something objectively observable—was a fact from which a jury could infer

unreasonableness. The District Court did not err in its application of the legal standard.1

       In holding the evidence was sufficient for a reasonable jury to find a Fourth

Amendment violation, the District Court relied on disputed facts related to Duong’s

position and proximity from Fox at the time the shooting occurred. According to the

District Court, taking the facts articulated in the light most favorable to Duong, because

he was sitting down, thirteen feet away from Fox, pointing his knife away from the

officer, and because Fox himself did not give a command to drop the knife and fired his

weapon as a reflex action, a reasonable jury could determine Fox’s shooting violated

Duong’s Fourth Amendment rights. The District Court drew this conclusion even after

recognizing “the high pressure inherent in the quickly evolving events that Officer Fox

encountered in the Duong residence.” App. at 10a; Mem. Op. at 7.

       Presented with only these limited facts taken in the light most favorable to Duong,

and drawing all reasonable inferences in his favor, we agree with the District Court. With

his knife pointed away, a jury might believe Duong posed no imminent or actual threat.

Without a command to drop the knife, a jury might believe it was unreasonable for an

officer armed with a gun to reflexively shoot a man with a knife pointed in a different

   1
     Regardless, the phrase “surrendering position” was used once, in a footnote
discussing Fox’s subjective understanding of the events he was witnessing. The District
Court in this footnote argued that if the events were to be described as a violent domestic
dispute, under the “totality of these circumstances,” Fox’s actions would be “less
reasonable.” App. at 11a; Mem. Op. at 8 n.3. But in other descriptions of the facts
directly relevant to its determination, the District Court only used the phrase “sitting” or
“sitting position.” Appendix at 11a, 12a; Mem. Op. at 8, 9.

                                              7
direction. A jury might also believe that, because Duong was in a sitting position, he was

not “actively resisting arrest” or trying to evade capture.2

          This case is similar to Curley v. Klem, in which—viewing the facts in the light

most favorable to the plaintiff—we decided a reasonable fact finder could conclude the

plaintiff’s Fourth Amendment rights were violated. There, the plaintiff claimed he was

shot even though his weapon was pointed away from the officer, even though he never

aimed the weapon at the officer, even though he turned away from the officer to retreat,

and even though there was “ample evidence” suggesting he was not a 

.

          Under this set of facts, a reasonable jury could come to the conclusion Duong’s

Fourth Amendment rights were violated.3

                                               C.


   2
    We note also that the presence of other relevant factual issues available to but not
considered by the District Court likely would not have altered the outcome here. For
example, Fox argues police officers in Pennsylvania “are trained that if a person with a
knife is within 21 feet of the officer the person with the knife is able to stab and cut the
officer even if the officer uses his gun to protect himself.” Appellant Br. at 20. Against
this assertion, Duong maintains “[t]he Police Department also had a policy that it was
excessive force to shoot a suspect armed with a knife who was at the far side of the
room.” Appellee Br. at 18. As with most other issues raised by the parties in their briefs,
these are factual disputes that a fact finder must resolve.
   3
    Fox asks us to focus, inter alia, on the short time frame (five seconds) from when he
called for backup to when he fired his weapon; on Duong’s panicked state; on being
outnumbered five to one; and on the confusing events of the crime scene to militate
against the evidence Duong presented. Although a jury could find Fox’s actions were
reasonable under the circumstances, Duong has presented sufficient evidence for a jury to
find otherwise.

                                               8
       The second prong of the qualified immunity analysis asks if the right violated is

“clearly established.” 

. A right is clearly established if “[t]he

contours of the right [are] sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Atkinson v. Taylor, 

, 261 (3d Cir.

2003) (quoting Anderson v. Creighton, 

, 640 (1987)). This inquiry “must be

undertaken in light of the specific context of the case, not as a broad general proposition.”

.

       Under this prong of the qualified immunity analysis, the District Court held

“disputed issues of material fact with regard to Mr. Duong’s position and movement at

the time of the shooting must be resolved by a jury before a court can determine whether

it would have been clear to a reasonable officer that Officer Fox’s conduct was unlawful.”

App. at 12a; Mem. Op. at 9. The District Court cited Curley, in which we held disputed

issues of material fact prevented us from determining whether the rights violated were

clearly established. See 

–83. Because of the need to tailor a

qualified immunity inquiry to the specific facts of the case, the District Court did not err.

       But the Supreme Court has cautioned us against denying summary judgment, as a

matter of course, every time there is a disputed material issue of fact on a Fourth

Amendment claim. 

. “The right allegedly violated must be

defined at the appropriate level of specificity before a court can determine if it was clearly

established.” Wilson v. Layne, 

, 615 (1999).



                                              9
       Fox acknowledges “the right to be free from excessive force was established long

before” the events at the center of this litigation. Appellant Br. at 25. He argues,

however, that “there is no case involving the instant factual scenario that established use

of deadly force in this circumstance is a violation of constitutional rights.” 

does not have to be a precise factual correspondence between the case

at issue and a previous case in order for a right to be clearly established.” 

(quoting People of Three Mile Island v. Nuclear Regulatory Comm’rs, 

, 144–45 (3d Cir. 1984)). Courts are not required to “agree[ ] upon the precise

formulation of the standard.” 

. If the facts of one case are

not distinguishable “in a fair way” from a set of facts that courts have already articulated

as constituting a violation, then an officer is not entitled to qualified immunity. 

The “appropriate level of specificity” required for Fox to be on notice that his conduct

was unreasonable need not reach a level of precise equivalence.

       The Supreme Court has held the use of deadly force “[w]here the suspect poses no

immediate threat to the officer and no threat to others” is not justified. Tennessee v.

Garner, 

, 11 (1985). However, “[w]here the officer has probable cause to

believe that the suspect poses a threat of physical harm, either to the officer or to others,”

deadly force may be justified. 

Supreme Court articulated its holding in

the context of an officer pursuing a suspect fleeing arrest—rather than, as here, an officer

using deadly force in apparent self-defense—we have adopted a “broad view of what

constitutes an established right of which a reasonable person would have known.” Kopec,

                                              

. The District Court did not err, and appropriately denied summary

judgment to allow the jury to resolve factual disputes.4

                                            III.

       We will dismiss for lack of jurisdiction.




   4
    Fox also claims that, under the third prong of the Saucier analysis, even if the right
had been “clearly established,” his mistake was nonetheless a “reasonable one” as a
matter of law. See 

. Provided factual disputes resolve the
immunity questions in Duong’s favor, if Fox is able to prove he held a mistaken belief as
to the law’s requirements, he should escape liability. See Bennett v. Murphy, 

, 137 (3d Cir. 2002) (“Saucier’s holding regarding the availability of qualified
immunity at the summary judgment stage does not mean that an officer is precluded from
arguing that he reasonably perceived the facts to be different from those alleged by the
plaintiff. An officer may still contend that he reasonably, but mistakenly, believed that
his use of force was justified by the circumstances as he perceived them; this contention,
however, must be considered at trial.”)

                                             11