NEWMAN v. CITY OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LISA NEWMAN and DONALD : CIVIL ACTION

NEWMAN, as Co-Administrators :

of the Estate of Richard Ferretti, :

Plaintiffs : N O. 17-2517

:

v. :

:

CITY OF PHILADELPHIA, et al. :

Defendants :

NITZA I. QUIÑONES ALEJANDRO, J. DECEMBER 23, 2020

MEMORANDUM OPINION

INTRODUCTION

Plaintiffs Lisa and Donald Newman (“Plaintiffs”), as co-administrators of the estate of

Richard Ferretti (“Feretti”), brought this action pursuant to 42 U.S.C. § 1983 and Pennsylvania

common law against Defendant Shannon Coolbaugh (“Defendant” or “Coolbaugh”), a police

officer in the Philadelphia Police Department.1 In their complaint, Plaintiffs allege that Coolbaugh

used excessive force and committed assault and battery when Coolbaugh shot and killed Feretti as

he attempted to flee arrest in his vehicle. Before this Court is Coolbaugh’s motion for summary

judgment, filed pursuant to Federal Rule of Civil Procedure (“Rule”) 56, in which he argues that

he is entitled to qualified immunity. The issues raised in the motion have been fully briefed and

are ripe for disposition. For the reasons set forth herein, Defendant’s motion is denied.

1 Plaintiffs also asserted a Monell claim against Defendant the City of Philadelphia, which is not

addressed in the underlying motion.

BACKGROUND

In the motion for summary judgment, Defendant argues that his conduct was

constitutionally permissible and that he is entitled to qualified immunity. When ruling on a motion

for summary judgment, a court must consider the evidence in the light most favorable to the non-

movant (here, Plaintiffs). Galena v. Leone, 638 F.3d 186, 196 (3d Cir. 2011). The facts relevant

to Plaintiffs’ claims and Defendant’s qualified immunity defense are summarized as follows:2

On May 4, 2016, at approximately midnight, Christopher Fernandes (a

student at St. Joseph’s University) noticed that a red van (driven by Ferretti) was

repeatedly driving past him on Lancaster Avenue in Philadelphia while he waited

to meet a friend. Fernandes thought the van was suspicious because it was

repeatedly circling the block. When Fernandes’s friend, Austin Reid, arrived, the

two men decided to follow the van to determine if they could learn why the driver

was repeatedly circling the area. While following the van, the men observed that

the driver was driving erratically. After watching the van circle the area for

approximately thirty to forty minutes (twenty to thirty times around the block),

Fernandes called 911 at approximately 12:47 a.m.

Defendant Coolbaugh and his partner, Officer Clifford Doorley, were the

first officers to arrive. Upon approaching the area in their undercover vehicle,

Coolbaugh and Officer Doorley saw the red van “flying past” them on Lancaster

Avenue in the opposite direction in which they were driving. They followed the

van and observed what they thought was reckless driving. Because they were in an

unmarked car, they called for a marked unit to assist, which arrived a few minutes

later, driven by Officer Michael Smith. Officer Smith turned on his lights and siren

and pulled the van over. Coolbaugh and Officer Doorley then circled back with the

intention of blocking traffic on Lancaster Avenue.

Coolbaugh and Officer Doorley arrived at the intersection of Lancaster and

Overbrook Avenues, where the van was stopped behind a civilian vehicle. Officer

Smith was approximately thirty feet behind the van in his marked vehicle, as was a

second police vehicle driven by Officer Brian Pavgouzas. The civilian vehicle that

had been stopped in front of the red van left.

As Coolbaugh exited his car, he unholstered his gun and held it in the lower

protective position, and approached the van by circling to the right in a maneuver

he termed “slicing the pie” or “circling the pie.” According to Coolbaugh, this

approach kept him from being directly in front of the van. At this same time,

2 These facts are derived from both parties’ statements of fact, briefs, and the exhibits attached

thereto. To the extent that any facts are disputed, such disputes will be noted and, if material, will be

construed in Plaintiffs’ favor pursuant to Rule 56.

Officer Doorley was circling around to the left. While he approached the van,

Coolbaugh instructed the occupant (Ferretti) to show his hands and to stop the van

and put it in park. Coolbaugh’s vehicle was parked two to three car lengths in front

of the van.

As Coolbaugh approached the van with his gun drawn, Ferretti backed up

his van and turned it so that the van faced Coolbaugh. Ferretti then put the van in

drive and accelerated towards Coolbaugh. At the time Ferretti began accelerating

forward, Coolbaugh contends that he was less than five feet away from the van’s

front bumper. Coolbaugh testified that he attempted to sidestep the van but was

unable to move out of the way quickly enough and was forced to discharge his

weapon in self-defense.3 Coolbaugh fired four shots. Forensic evidence shows that

none of the bullets hit the windshield or the front side of the van. Rather, the front

driver’s side window was shattered, one bullet hit the driver’s side fender, and

Ferretti was hit by three bullets traveling from his left side to his right.4 The van

traveled through the intersection, and never struck Coolbaugh or any other person.

Ferretti subsequently died from the gunshot wounds.

LEGAL STANDARD OF REVIEW

Rule 56 governs the practice of summary judgment motions. Rule 56 provides that

summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

fact is “material” if its existence or non-existence might affect the outcome of the case, and a

dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Under Rule 56,

the court must view the evidence in the light most favorable to the non-moving party. Galena,

638 F.3d at 196.

3 As discussed in detail below, Plaintiffs dispute Coolbaugh’s contention that he was just five feet

from and directly in the path of Ferretti’s van when it accelerated towards him and that he fired his weapon

in self-defense.

4 When interviewed at the scene, Coolbaugh told the supervising sergeant that he had fired his

weapon in a “southeast” direction.

The movant bears the initial burden of identifying evidence that “demonstrate[s] the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);

see also UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). Once the

movant has met its initial burden, the nonmovant must rebut the motion by identifying “some

evidence in the record that creates a genuine issue of material fact.” Berckeley Inv. Group, Ltd. v.

Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). In doing so, the nonmovant must rely on facts in the

record and “cannot rest solely on assertions made in the pleadings, legal memoranda, or oral

argument[,]” id., or on “bare assertions, conclusory allegations[,] or suspicions.” Fireman’s Ins.

Co. of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). If the nonmovant “fails to make a

showing sufficient to establish the existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial[,]” then the court should grant summary

judgment for the movant. Celotex, 477 U.S. at 322.

In cases where “the victim of deadly force is unable to testify,” Abraham v. Raso, 183 F.3d

279, 294 (3d Cir. 1999), the United States Court of Appeals for the Third Circuit (the “Third

Circuit”) has recognized that when a court is ruling on summary judgment in such a case, the court

“should be cautious . . . to ‘ensure that the officer[s are] not taking advantage of the fact that the

witness most likely to contradict [their] story—the person shot dead—is unable to

testify.’” Id. (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). Thus, a court should

avoid simply accepting “‘what may be a self-serving account by the officer[s]. It must also look

at the circumstantial evidence that, if believed, would tend to discredit the police officer’s story,

and consider whether this evidence could convince a rational fact finder that the officer[s] acted

unreasonably.’” Id. (quoting Scott, 39 F.3d at 915).

DISCUSSION

Defendant moves for summary judgment on Plaintiffs’ § 1983 claim for excessive force

on the basis that he is entitled to qualified immunity because his actions were objectively

reasonable and did not violate a clearly established legal right. In their response, Plaintiffs argues

that genuine issues of material fact exist with respect to the reasonableness of Defendant’s conduct

and, further, that Ferretti’s right to be free from the use of excessive force against him under the

existing circumstances was clearly established at the time of the incident.

Plaintiff’s § 1983 Claim5 for Excessive Force

Qualified immunity shields government officials “from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The

officer seeking qualified immunity has the burden of establishing his or her entitlement to the

affirmative defense. Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014) (citing Reedy v. Evanson,

615 F.3d 197, 223 (3d Cir. 2010)). To determine whether an officer is qualifiedly immune from

suit, a court must determine (1) whether the officer violated a constitutional right and, if so, (2)

whether the right was clearly established. See Saucier v. Katz, 533 U.S. 194, 201-02 (2001).

These questions can be addressed in either order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

This Court will first address whether Coolbaugh’s alleged use of deadly force violated the Fourth

Amendment.

5 Section 1983 provides an avenue for private citizens to seek civil remedies when they have been

deprived of their rights by a state official in violation of federal law. 42 U.S.C. § 1983. The statute is not

a source of substantive rights, but serves as a mechanism for vindicating rights otherwise protected by

federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204

(3d Cir. 1996). To establish a § 1983 claim, a plaintiff must show “a violation of a right secured by the

Constitution and laws of the United States and that the alleged deprivation was committed by a person

acting under color of state law.” Kneipp, 95 F.3d 1204 (3d Cir. 1996) (quoting Mark v. Borough of Hatboro,

51 F.3d 1137, 1141 (3d Cir. 1995)).

Whether Defendant’s Actions Violated Ferretti’s Fourth Amendment Rights

Plaintiffs allege that Coolbaugh used excessive force in violation of the Fourth Amendment

by firing four shots at Ferretti’s van as it passed Coolbaugh during Ferretti’s flight. The Fourth

Amendment protects “[t]he right of the people to be secure in their persons . . . against

unreasonable . . . seizures.” To prevail on an excessive force claim, a plaintiff must establish “that

a ‘seizure’ occurred and that [such seizure] was unreasonable.” Abraham v. Raso, 183 F.3d 279,

288 (3d Cir. 1999) (citing Brower v. County of Inyo, 489 U.S. 593, 599 (1989)). Here, it is

undisputed that Ferretti was seized, within the meaning of the Fourth Amendment, when

Coolbaugh shot him. See Tennessee v. Garner, 471 U.S. 1 (1985). Coolbaugh argues, however,

that the undisputed evidence establishes that his use of force was objectively reasonable under the

circumstances and subject to qualified immunity.

It is well-settled that an officer’s use of deadly force is reasonable only where “it is

necessary to prevent escape, and the officer has probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to the officer or others.” Garner, 471 U.S. at

3. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a

reasonable officer on the scene” and in light of the “totality of the circumstances.” Graham, 490

U.S. at 396. Making this determination requires careful attention to the facts and circumstances

of each particular case, including: the severity of the alleged crime; whether the suspect posed an

immediate threat to the safety of the officers or others; and whether the suspect is actively resisting

arrest or attempting to evade arrest by flight. Id. “The calculus of reasonableness must embody

allowance for the fact that police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is

necessary in a particular situation.” Id. at 396-97. As such, this Court must determine whether,

“giving due regard to the pressures faced by the police, was it objectively reasonable for the officer

to believe, in light of the totality of the circumstances, that deadly force was necessary to prevent

the suspect’s escape, and that the suspect posed a significant threat of death or serious physical

injury to the officer or others[.]” Abraham, 183 F.3d at 289.

Here, this Court finds that genuine issues of material fact exist regarding the reasonableness

of Defendant’s use of deadly force, which culminated in Ferretti’s death. Although it is undisputed

that Ferretti was resisting arrest at the time of the shooting, “this factor alone cannot justify the use

of deadly force.” Plaza-Bonilla v. Cortazzo, 2009 WL 605909, at *6 (E.D. Pa. Mar. 9, 2009)

(citing Abraham, 183 F.3d at 289). More importantly, Plaintiffs have pointed to evidence that,

when viewed in their favor, could suggest that Defendant’s use of deadly force was unreasonable.

Defendant argues that the evidence demonstrates that he had a reasonable basis for

believing that he faced an immediate threat of serious harm upon observing Ferretti accelerate the

van directly toward him, while he was just “five feet” away from the front of the van. While

Defendant Coolbaugh is correct that these facts, if undisputed, would likely establish that Ferretti

posed an immediate threat of harm to Coolbaugh’s safety at the moment he drove toward

Coolbaugh, those facts are not undisputed. However, as Plaintiffs argue, a reasonable jury could

find, based on the existing record, that Coolbaugh did not shoot Ferretti: (1) from a point in the

immediate and direct path of Ferretti’s moving vehicle; and/or (2) until after Ferretti had driven

past Coolbaugh such that Coolbaugh was not in danger of being hit.

Though Coolbaugh and the other officers testified that Coolbaugh stood directly in front

of Ferretti’s van at a distance of approximately five feet, Plaintiffs’ forensic evidence arguably

suggests that Coolbaugh stood further away from the van when it began moving forward and/or

that Coolbaugh was not directly in the van’s path, which may support an inference that Coolbaugh

was not under any threat of immediate, serious harm at the time he fired shots at Ferretti. Plaintiffs

proffered the expert opinion of William Vigilante who opined that a person standing five feet in

front of a vehicle (as Coolbaugh contends) would not have had sufficient time to respond either by

discharging a firearm or moving out of the way of the vehicle without being hit.6 This evidence

creates a genuine issue of material fact as to where and how far away Coolbaugh was standing,

from the van, when Ferretti accelerated towards Coolbaugh without touching him with the van.

In addition, Plaintiffs proffered evidence that refutes Coolbaugh’s contention that he was

directly in the path of Ferretti’s van and unable to avoid being hit when he fired his gun.

Specifically, Plaintiffs point to the fact that none of Coolbaugh’s shots hit the windshield or the

front side of the vehicle but, rather, only the front driver’s side window was shattered and a bullet

struck the front driver’s side fender. Additionally, the autopsy report indicates that Ferretti was

struck by multiple bullets that traveled from left to right, which is consistent with Coolbaugh

having fired the shots from outside the driver’s side of the van. Further, Coolbaugh’s own

statement made just hours after the incident indicate that he fired his weapon in a “southeast”

direction while the van was traveling east, also supports Plaintiffs’ contention that Coolbaugh fired

his weapon while standing to the side of the van, rather than in the van’s direct path. While this

evidence may not conclusively eliminate the possibility that Coolbaugh was standing in the direct

path of Ferretti’s van when he fired his gun, it does create genuine issues of material fact as to

Coolbaugh’s exact location when he fired his gun and his ability to avoid being struck by the

vehicle. See Abraham v. Raso, 183 F.3d 279, 293-95 (3d Cir. 1999) (finding genuine issue as to

6 Mr. Vigilante based his finding, in part, on a limited reconstruction conducted for the Philadelphia

Police Department by Pennsylvania State Police Trooper Gregory Butler. Trooper Butler’s reconstruction

showed that, at maximum acceleration, Ferretti’s van would have traveled three feet in 0.71 seconds—far

less than the standard perception/reaction time of 1.6 seconds. Adopting Trooper Butler’s formulas, Mr.

Vigilante found that Ferretti’s van would have traveled five feet in 0.92 seconds.

whether officer reasonably acted in self-defense against car driven by suspect where fatal shot

came through driver’s side window and officer was not significantly injured or even struck by the

car).

Coolbaugh’s argument that he fired his weapon to protect others (as opposed to protecting

himself) is also subject to genuine issues of material fact. Of the four officers on the scene, only

Coolbaugh fired his weapon. Notably, Coolbaugh testified that the only reason he fired his weapon

was fear for his own life. Two of the four officers on the scene (Officers Smith and Pavgouzas)

were situated behind Ferretti’s van, and both testified that they were not concerned for their own

safety. Coolbaugh’s partner (Doorley) was positioned on the opposite side of the road as

Coolbaugh, presumably out of the direct path of Ferretti’s vehicle. Further, Coolbaugh did not

present evidence that there were any civilian bystanders in the immediate vicinity of the van.

Indeed, nobody was hit by Ferretti’s vehicle. This collection of evidence, at least, creates a genuine

issue of material fact as to Defendant Coolbaugh’s contention that Ferretti posed a threat of serious

injury to any others.

In sum, genuine issues of disputed facts remain as to how close Coolbaugh was to the

vehicle when Ferretti accelerated forward, and whether the van moved directly towards Coolbaugh

or posed a threat to anyone else. Consequently, a reasonable jury could conclude that Coolbaugh’s

use of deadly force was not justified by either an immediate threat posed by Ferretti to the safety

of Defendant Coolbaugh or to the safety of others. See Abraham, 183 F.3d at 292-93 (finding

genuine issue regarding threat to others where it was unclear how close officers were when suspect

backed up towards them and how fast the suspect was driving, and noting that “the fact that [the

suspect] collided forcefully with a parked car . . . [did] not by itself show that [he] posed a

significant threat of death or serious physical injury to other people”).

Moreover, this case is not only similar to, but governed by Abraham, wherein the Third

Circuit reversed a district court’s grant of summary judgment where there was conflicting evidence

as to the reasonableness of a guard’s use of deadly force. In Abraham, the defendant (like

Coolbaugh) testified that she was standing directly in front of the decedent’s car when the decedent

began to drive directly toward her. Id. at 285. The defendant fired her weapon through the front

driver’s side window, striking the driver in the arm and chest. Id. at 285. The driver eventually

died from the gunshot wounds. At the motion for summary judgment stage, his estate argued that

the defendant fired from the side of the decedent’s car and, thus, was safely out of harm’s way

when she used deadly force. Id. at 286. The district court granted the motion for summary

judgment. Reversing the decision of the district court, the Third Circuit found that summary

judgment was inappropriate because there were genuine issues as to what risk the decedent posed

to the defendant and others. Id. at 292-93. Specifically, the Third Circuit found that it was unclear

how close the defendant and other guards were to the decedent’s car as he was backing up and

how fast he drove in reverse, id. at 293 and, therefore, that summary judgment was inappropriate

because there were genuine issues of material fact as to what risk the decedent posed to the

defendant’s life. Id. at 293-94. The Court further found that there was conflicting evidence

regarding where the defendant was standing when she shot the decedent and that, even if she were

hit or brushed by the decedent’s car, the evidence showed she was not significantly injured, which

created a genuine issue about whether she had time to get out of the way and the gravity of the

threat posed to her. Id. at 294. Moreover, the Court noted that “[a] passing risk to a police officer

is not an ongoing license to kill an otherwise unthreatening suspect.” Id. (citing Ellis v.

Wynalda, 999 F.2d 243, 247 (7th Cir. 1993)). Based on the record before it, the Court could not

“say as a matter of law that it was objectively reasonable for [the defendant] to believe that she

was in danger.” Id. at 294. As such, the Court thought a jury should determine (1) whether the

defendant fired her gun after she was out of harm’s way and (2) whether the decedent’s conduct

was so dangerous as to warrant the use of deadly force. Id. at 295.

Here, Plaintiffs have presented similar evidence as that presented in Abraham to support

the possibility that Coolbaugh fired shots from a location and/or at a point in time when Ferretti’s

van did not pose a reasonable threat to Coolbaugh’s life or to the safety of others. As in Abraham,

it is undisputed that some of Coolbaugh’s shots traveled through the driver’s side of the vehicle

and none of them traveled through the windshield. In addition, as with the decedent in Abraham,

the autopsy report showed that the bullets entered Ferretti through his left side. This evidence

creates the same genuine issues of material fact as existed in Abraham: (1) whether Coolbaugh

fired the deadly shots at a time when Coolbaugh could objectively, reasonably believe his life was

at risk, and (2) whether Coolbaugh could have avoided such risk. As in Abraham, these issues

must be left for the trier of facts.7

1. Whether Ferretti’s Constitutional Right was Clearly Established

Having found that Plaintiffs have presented sufficient evidence from which the trier of facts

could conclude that Coolbaugh violated Ferretti’s Fourth Amendment right to be free from

excessive force, this Court must next address the second prong of the qualified immunity

analysis—i.e., whether that right was clearly established at the time of the incident.

Coolbaugh argues that even if the force used was unreasonable, he is entitled to qualified

immunity because his actions did not violate a “clearly established” right. Specifically, he

contends that whether the contours of the right were clearly established depends on the specific

facts of a given case, and that no case squarely governs the use of force under the circumstances

7 A recent panel of the Third Circuit reached a similar conclusion. See Eberhardinger v. City of

York, 782 F. App’x 180, 181 (3d Cir. 2019).

in this case. In response, Plaintiffs argues that there need not be a precedent directly on point for

a right to be clearly established and that the Third Circuit’s decision in Abraham (and other cases)

clearly established the right at issue here. This Court agrees with Plaintiffs.

As previously noted, the second prong of the qualified immunity analysis requires a court

to determine whether a plaintiff’s purported constitutional right was “clearly established” at the

time of the defendant’s alleged misconduct. Lamont, 637 F.3d at 182 (quoting Saucier, 533 U.S.

at 201–02). “Clearly established” means that “at the time of the officer’s conduct, the law was

sufficiently clear that every reasonable official would understand that what he is doing is

unlawful.” District of Columbia v. Wesby, __ U.S. __, 138 S. Ct. 577, 589 (2018) (internal

quotations and citation omitted).8 In determining that right, this Court must keep in mind the

Supreme Court’s repeated directives “not to define clearly established law at a high level of

generality” but, instead, conduct this analysis “in light of the specific context of the case.”

Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quotation marks omitted).

For qualified immunity purposes, “clearly established rights are derived either from

binding Supreme Court and Third Circuit precedent or from a robust consensus of cases of

persuasive authority in the Courts of Appeals.” Bland v. City of Newark, 900 F.3d 77, 84 (3d Cir.

2018) (internal quotations and citation omitted). In determining whether the alleged right was

clearly established at the relevant time, there does not need to be “a case on point, but existing

precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v.

al-Kidd, 563 U.S. 731, 741 (2011). That is, to hold that a right was clearly established, a court

does not need to find that the very conduct at issue was previously held unlawful; rather, a court

8 The shooting in this case occurred on May 4, 2016, so only precedents that clearly established

rights as of that date are relevant to this inquiry. See Bryan v. United States, 913 F.3d 356, 363 (3d Cir.

2019).

must “conclude that the firmly settled state of the law, established by a forceful body of persuasive

precedent, would place a reasonable official on notice that his actions obviously violated a clearly

established constitutional right.” Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 639 (3d Cir.

2015) (citations omitted). “The dispositive question is whether the violative nature of particular

conduct is clearly established. This inquiry must be undertaken in light of the specific context of

the case, not as a broad general proposition.” Mullenix, 577 U.S. at 12 (internal quotes and citation

omitted). Finally, qualified immunity is the rule, not the exception: “police officers are entitled

to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.”

Kisela v. Hughes, __ U.S. __, 138 S. Ct. 1148, 1153 (2018) (quoting Mullenix, 136 S. Ct. at 309).

Here, all of Defendant’s arguments with respect to the clearly-established prong merely

repeat his argument that an officer does not violate the Fourth Amendment when he uses deadly

force to protect himself or others from immediate serious injury. (See ECF 39-2 at pp. 41-44).

This argument is misdirected at the second prong, as it applies only to the first prong, addressed

above. In fact, this argument and the plethora of cases on which Defendant relies to support it,

actually establish that the right at issue here was clearly established at the time of the shooting.

All of the cases cited by Defendant stand for the proposition that an officer does not violate a

person’s Fourth Amendment right to be free from excessive force where the officer reasonably

believes that the force is necessary to prevent immediate, serious injury to himself or others, even

in the context where the plaintiff is driving a vehicle. The reverse is also clearly established: an

officer violates a person’s Fourth Amendment right to be free from excessive force when an officer

uses deadly force in the absence of a reasonable belief that the force is necessary to prevent

immediate, serious injury to himself or others. Indeed, the Third Circuit expressly held as much

in Lamont v. New Jersey:

It has long been the law that an officer may not use deadly force

against a suspect unless the officer reasonably believes that the

suspect poses a threat of serious bodily injury to the officer or

others. In short, the dispute in this case is about the facts, not the

law. The doctrine of qualified immunity is therefore inapposite.

637 F.3d 177, 185 (3d Cir. 2011) (emphasis added) (internal citations omitted).

Further, in Eberhardinger v. City of York, 782 F. App’x 180 (3d Cir. 2019), a panel of the

Third Circuit concluded that the Third Circuit’s previous binding decision in Abraham decided in

1999, was sufficient to place an officer on notice that his conduct (using deadly force against an

individual driving car when the driver did not pose a threat to the safety of the officer or others)

was unlawful. Id. at 185. The Eberhardinger Court also noted that “[o]ther Courts of Appeals

have reached the same conclusion in the specific context of a car chase . . . that ‘[i]t has long been

clearly established that, absent any justification for the use of force, it is unreasonable for a police

officer to use deadly force against a fleeing felon who does not pose a sufficient threat of harm to

the officer or others.’” Id. at 186 (citations omitted); see also Orn v. City of Tacoma, 949 F.3d

1167, 1178 (9th Cir. 2020) (“By the time of the shooting in October 2011, at least seven circuits

[including the Third Circuit in Abraham] had held that an officer lacks an objectively reasonable

basis for believing that his own safety is at risk when firing into the side or rear of a vehicle moving

away from him.”). Because this precedent indicates that the right at issue here was, indeed, clearly

established at the time of the underlying incident, and in light of the existence of the genuine issues

of material fact discussed above, Defendant is not entitled to qualified immunity on the existing

record.

Plaintiffs’ State Law Claims

Defendant also seeks summary judgment on Plaintiffs’ state law claims for assault and

battery, wrongful death, and survival on the basis that Defendant is immune from liability under

Pennsylvania’s Political Subdivision Tort Claims Act (the “PSTCA”), 42 Pa. Cons. Stat. § 8541

et seq. The PSTCA provides immunity to municipalities and their employees for official actions,

unless the employee’s conduct goes beyond negligence and constitutes “a crime, actual fraud,

actual malice, or willful misconduct.” Id. at § 8550. Here, as discussed at length above, Plaintiffs

have proffered evidence sufficient for a trier of fact to find that Defendant’s alleged conduct went

beyond mere negligence. As such, Plaintiffs’ state law claims are not barred by the PSTCA. See

Boyden v. Twp. of Upper Darby, 5 F. Supp. 3d 731, 744 (E.D. Pa. 2014) (“Taking the facts Boyden

has pled as true, he has stated a claim for excessive force, and so he has also stated claim for assault

and battery.”); Barkus v. Knirnschild, 2018 WL 124415, at *13 (W.D. Pa. Mar. 9, 2018) (having

held that a jury reasonably could conclude that the shooting was objectively unreasonable, “[i]t

follows, then, that the conduct may be seen as sufficiently outrageous and ‘unexpectable by the

master’ that sovereign immunity does not apply.”).

CONCLUSION

For the reasons set further herein, this Court finds that Defendant Coolbaugh is not entitled

to qualified immunity on the present record and, therefore, Defendant’s motion for summary

judgment is denied. An Order consistent with this Memorandum Opinion follows.

NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.