381 F.3d 235 | 3rd Cir. | 2004
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 In suits under 42 U.S.C. § 1983 for court for a protection from abuse order (“PFA”) [1] because her husband presented damages against government officials for 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 a PFA. See 23 Pa. Cons. Stat. Ann. § apprehension by the police. Plaintiff 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 contact between the plaintiff and result of constitutional violations by 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). 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 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, 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 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 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 an analysis sua sponte . See Garner, 471 209. Those procedural differences with 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 at the time of the alleged violation.’” We recognize that expert opinions 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 [his] actions did not violate ‘clearly evidence. Weisgram v. Marley Co., 528 U.S. 440 (2000). In Weisgram, however, established statutory or constitutional the admissibility of the expert testimony rights of which a reasonable person would have known.’” Hope v. Pelzer, 536 U.S. had been the focal point of appeal and had been thoroughly briefed and argued. In 730, 739 (2002) (quoting Harlow, 457 U.S. at 818). City of Riviera Beach, 208 F.3d 919, 926-
27 (11 th 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. 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 reports on the events at the plaintiff’s [2] See, e.g., Rivera-Jimenez home. He was aware that the husband had v. Pierluisi, 362 F.3d 87, 95 (1 st Cir. violated the PFA four times within the past 2004); Stephenson v. Doe, 332 F.3d 68, several hours and that it was thought 80-81 (2d Cir. 2003); Knussman v. prudent to have an officer remain in the Maryland, 272 F.3d 625, 634 (4 th Cir.
house to ease the fears of plaintiff, who 2001); Warlick v. Cross, 969 F.2d 303, had armed herself with a knife. Snyder 305 (7 th Cir. 1992) Johnson v. Breeden,
was also in radio contact with the other 280 F.3d 1308, 1318 (11 th Cir. 2002). 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 (10 th 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”). 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 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 l a i m s o f m u n i c i p a l l i a b i l i t y 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 F.3d 1143, 1150-51 (7 th Cir. 1994), the 120, 124-25 (3d Cir. 2003). There must be “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 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 e n a c t a p o l i c e
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 employee, a § 1983 plaintiff will be able to [4] Cf. Grabowski v. Brown ,
922 F.2d 1097, 1110 (3d Cir. 1991), cert. 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 . Here, however, the usual concerns
I. 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 to conclude that Officer Snyder used
denied sub nomine Borough of Roselle v. 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 As the majority ably discusses, the directly hold that “a constitutional right fact that a jury could conclude that Snyder allegedly violated could not have been used excessive force to subdue Carswell clearly established because it has not been 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 force resulted from the Borough’s policy [5] 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. 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 and the [] deprivation.” Id . at 385. [9] My using excessive deadly force where non- 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
officials . . . so permanent and well settled as force could reasonably have been to virtually constitute law.” Berg v. County employed to subdue Carswell. 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] A municipality like the as the majority explains. See Maj. Op. at 25 Borough “may . . . be sued directly if it is (citing Kneipp v. Tedder , 95 F.3d 1199, alleged to have caused a constitutional tort 1213 (3d Cir. 1996) and Fagan v. City of through a policy statement . . . officially Vineland , 22 F.3d 1283, 1294 (3d Cir. adopted and promulgated by that body’s 1994)). 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 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 n a r r o w r a n g e o f quoted City of Canton , noting: circumstances, a violation of
federal rights may be a It may seem contrary to h i g h l y p r e d i c t a b l e 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 t o h a n d l e r e c u r r i n g 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 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 (emphasis added). [10] information [and] no check . . . to guard 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. 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 e n a c t a p o l i c 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
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 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.
NOTES
[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.
