# PENA v. CITY OF LANCASTER

> District Court, E.D. Pennsylvania · September 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10405909

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** September 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10405909

## How later opinions describe it (automated extraction)

- explaining that Monell requires a kind of primary liability as to a “high-level official” with policymaking authority but not as to a “low-level employee,” such as Officer Arnold here

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MIGUELINA PEÑA, :
Individually and as Independent :
Administrator of the Estate of Ricardo :
Muñoz, deceased :
:
Plaintiff, : CIVIL ACTION NO. 21-590
:
v. :
:
CITY OF LANCASTER et al., :
:
Defendants. :

MEMORANDUM OPINION

SCHMEHL, J. /s/ JLS September 7, 2023

Plaintiff Miguelina Peña initiated this action following the shooting and killing of her 27-
year-old son, Ricardo Muñoz, by Lancaster City police officer Karson Arnold. Pursuant to the ten
federal and state law claims remaining in this case, Ms. Peña seeks damages and other relief from
Officer Arnold, the City of Lancaster, and former Lancaster City police chief Jarrad Berkihiser.
Defendants filed an Answer disputing certain allegations from the Complaint and raising
affirmative defenses. Subsequently, on February 10, 2022, Defendants filed the instant Motion for
Judgment on the Pleadings (ECF No. 55). For the reasons set forth below, the Motion is granted
in part and denied in part.
I. BACKGROUND
A. Pleaded Facts
This case arises from the fatal shooting Mr. Muñoz on September 13, 2020. As detailed in
Ms. Peña’s Complaint, Mr. Muñoz, who had schizophrenia and bipolar disorder, was suffering
from a mental health crisis at his mother’s home, eventually leading one of his sisters to call 911.
(Compl. at 1, ¶ 37, ECF No. 1.) Officer Arnold was dispatched to the scene and arrived at around
4:00 p.m. (Id. ¶ 23.) As Officer Arnold approached Ms. Peña’s home, Mr. Muñoz retrieved a
knife and, exiting the home, ran off the front porch towards Officer Arnold, who shot Mr. Muñoz
four times. (Id. ¶¶ 24–27, 29, 44.) According to the Complaint, additional police officers arrived

shortly thereafter and “intervened to prevent [Mr. Muñoz] from getting emergency medical
attention by cancelling the ambulance that had previously been dispatched to the scene.” (Id. ¶ 64.)
Mr. Muñoz allegedly did not receive medical attention until 6:20 p.m.—over two hours after his
shooting at around 4:00 p.m. (Id. ¶¶ 66–67.) The coroner reportedly determined Mr. Muñoz’s
time of death to be 6:35 p.m. (Id. ¶ 66.) Finally, Ms. Peña alleges that following the shooting,
“various police officers tackled [her] against a police vehicle,” thereby injuring her leg, and
subsequently detained her at the police station until she involved an attorney. (Id. ¶¶ 139–40.)
Ms. Peña contends that the City “had become familiar with [Mr. Muñoz’s] psychiatric
disability” because, prior to his killing, the City “had multiple interactions” with Mr. Muñoz,
including “on at least five other occasions since 2019.” (Id. ¶¶ 32–34.) Despite this history, Ms.

Peña claims that the City did not “place[] a hazard alert on the family’s home for future service
calls.” (Id. ¶ 36.) For the September 20, 2022, incident in particular, Ms. Peña alleges that Mr.
Muñoz’s sister informed the 911 operator that Mr. Muñoz dealt with mental illness, that “there
were no weapons, drinking, or drug use involved” in the emergency, and that the family “simply
needed help ‘with you bringing [Mr. Muñoz] to the hospital.’” (Id. ¶¶ 38–40.) Ms. Peña further
alleges that dispatch informed Officer Arnold of Mr. Muñoz’s mental illness and ongoing mental
health crisis. (Id. ¶ 41.) Ms. Peña asserts that because Officer Arnold failed to wait for backup
and either “was not equipped with, or unreasonably failed to use, non-lethal weapons, such as a
Taser ERD,” Officer Arnold “did not have a de-escalation option planned,” resulting in the fatal

shooting of Mr. Muñoz. (Id. ¶¶ 42, 45–46.)
According to the Complaint, this is not an isolated incident for Lancaster police. Ms. Peña
alleges “widespread failures” of the City and its police department, including the following:
“operat[ing] a dysfunctional disciplinary system for Lancaster Police officers accused of serious
misconduct”; “fail[ing] to conduct independent investigations of incidents involving officers who

use excessive force or violate other constitutional rights”; maintaining “deficient policies and
practices regarding officer supervision and training”; and having to defend against and settle
various lawsuits concerning excessive force or other constitutional violations. (Id. ¶¶ 50–61.)
Taken together, Ms. Peña claims, these facts establish “a clear pattern” of constitutional violations
by the City’s police department that City and police leadership have failed to rectify. (Id.
¶¶ 60, 62.)
B. Summarized Disposition of the Twelve Counts
Based on the foregoing allegations, Ms. Peña brought 12 claims that seek various damages,
including punitive damages, as well as attorneys’ fees. (Id. ¶¶ 68–151.) Count I alleges excessive
use of deadly force by Officer Arnold in violation of the Fourth and Fourteenth Amendments to
the U.S. Constitution.1 Because the Court finds that Officer Arnold is entitled to qualified

immunity as to the shooting of Mr. Muñoz, Count I must be dismissed. Count II, arising from that
same shooting, seeks to establish liability against the City under Monell v. Dep’t of Soc. Servs. of
City of New York, 436 U.S. 658 (1978). Below, the Court finds that this claim survives Defendants’
Motion regardless of the disposition of Count I.
Count III was brought as to former Defendant Lancaster County alone, and the Court
previously dismissed that party and Count III. (See ECF Nos. 42, 43.) Count IV, brought against

1 Plaintiff has agreed to withdraw the portion of Count I that invokes substantive due process
under the Fourteenth Amendment. (See Pl.’s Br. 14, ECF No. 71.)
all Defendants, is predicated on the alleged denial of medical care to Mr. Muñoz. Material issues
of fact preclude judgment on the pleadings as to Officer Arnold, and Ms. Peña has sufficiently
pleaded this claim as to Chief Berkihiser and the City. Count V relates to the allegedly deficient
hiring, training, supervision, and monitoring practices maintained by the City and Chief

Berkihiser. Other than the portion of Count V dealing with the hiring of Officer Arnold, Ms. Peña
has sufficiently pleaded these claims and is entitled to investigate them more thoroughly through
discovery.
Counts VI through VIII assert various claims under Pennsylvania law. The Court rejects
Defendants’ argument that Pennsylvania immunity law precludes liability for Counts VI and VII,
and Defendants have not otherwise challenged the sufficiency of the pleadings for those Counts.
(Ms. Peña has agreed to withdraw her claim in Count VII as to the City (see Pl.’s Br. 23) but
otherwise maintains this claim against Officer Arnold and Chief Berkihiser.) Ms. Peña has also
voluntarily dismissed Count VIII as to all Defendants. (See Pl.’s Br. 23.)
Count IX asserts violations of the Americans with Disabilities Act as to the City and

survives Defendants’ Motion. Counts X through XII relate to injuries suffered by Ms. Peña herself.
Ms. Peña has agreed to withdraw Counts X and XII as to the City (see Pl.’s Br. 23), so Count X
will proceed as to Officer Arnold alone, and Count XII will proceed as to unknown police officers
alone. As above, the Court finds that Pennsylvania immunity law does not bar Count X. Ms. Peña
brings Count XI as a Monell claim against the City and unknown officers, and Defendants contest
only the Monell liability as to the City. The Court rejects that argument as well.
II. JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction over the claims in this matter pursuant to 28 U.S.C. §§ 1331,
1343, and 1367(a). Venue is proper pursuant to 28 U.S.C. § 1391(b) because a substantial part of
the events or omissions giving rise to Ms. Peña’s claims occurred in this District.
Defendants have made their motion pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure, which provides that “[a]fter the pleadings are closed—but early enough not to delay
trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). Rule 12(c) motions
are reviewed under the same standard as motions to dismiss under Rule 12(b)(6). See Wolfington

v. Reconstructive Orthopaedic Assocs. II PC, 935 F.3d 187, 195 (3d Cir. 2019). This Court,
“‘view[ing] the facts presented in the pleadings and the inferences to be drawn therefrom in the
light most favorable to the nonmoving party,’ . . . may not grant the motion ‘unless the movant
clearly establishes that no material issue of fact remains to be resolved and that he is entitled to
judgment as a matter of law.’” Id. (quoting In re Asbestos Prods. Liab. Litig. (No. VI), 822 F.3d
125, 133 n.6 (3d Cir. 2016)).
Further, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
satisfies the plausibility standard when the facts alleged “allow[] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Burtch v. Millberg Factors, Inc.,
662 F.3d 212, 220–21 (3d Cir. 2011) (citing Iqbal, 556 U.S. at 678). While the plausibility
standard is not “akin to a ‘probability requirement,’” there nevertheless must be more than a “sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557).
The Third Circuit requires this Court to apply a three-step analysis under a Rule 12(b)(6)
motion: (1) the Court “must ‘tak[e] note of the elements [the] plaintiff must plead to state a

claim’”; (2) the Court “should identify allegations that, ‘because they are no more than
conclusions, are not entitled to the assumption of truth’”; and (3) “[w]hen there are well-pleaded
factual allegations, [the] court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.” Connelly v. Lane Construction Corp., 809 F.3d
780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 675, 679); see also Burtch, 662 F.3d at 221.

III. ANALYSIS
A. Preliminary Issues
1. Claims Against Chief Berkihiser in His Official and Personal
Capacities
The U.S. Supreme Court has explained that “official-capacity suits generally represent only
another way of pleading an action against an entity of which an officer is an agent.” Monell,
436 U.S. at 690 n.55; see also Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-
capacity suit is, in all respects other than name, to be treated as a suit against the entity.”).
Accordingly, courts routinely dismiss official-capacity defendants if the plaintiff has also sued that
official’s government employer. See, e.g., Baez v. Lancaster County, 487 Fed. App’x 30, 32 (3d
Cir. 2012); Cuvo v. De Biasi, 169 Fed. App’x 688, 693 (3d Cir. 2006); Shelton v. City of
Philadelphia, 2021 WL 3857856, at *5 (E.D. Pa. Aug. 30, 2021) (gathering cases). Given that
Ms. Peña has brought claims against both the City and Chief Berkihiser, Defendants ask the Court
to dismiss Chief Berkihiser from the case. (Defs.’ Br. 26.)
The Court agrees that to the extent that Ms. Peña has sued Chief Berkihiser in his official
capacity, those claims must be dismissed. Ms. Peña, however, appears to have also sued Chief
Berkihiser in his personal capacity. From the outset, the Complaint’s caption mentions both his

official and individual capacities. When describing the parties, Ms. Peña alleges, on the one hand,
that Chief Berkihiser “was acting under the color of law in the course and scope of his
employment” and, therefore, “is being sued in his official capacity as Chief of Police for CITY”
(Compl. ¶ 9), but on the other hand, that Chief Berkihiser “was personally on notice of the
unconstitutional deficiencies” in police policy and “with deliberate indifference failed to correct
said unconstitutional deficiencies” (id. ¶¶ 10–11). Later, Ms. Peña also alleges that Chief
Berkihiser, as Officer Arnold’s supervisor, “had implicitly or explicitly permitted the use of lethal

force when non-lethal force would have been reasonable.” (Id. ¶ 31.)
The Third Circuit has outlined two theories of supervisory liability that may attach to Chief
Berkihiser in his personal capacity: (1) “[i]ndividual defendants who are policymakers may be
liable under § 1983 if it is shown that such defendants, ‘with deliberate indifference to the
consequences, established and maintained a policy, practice or custom which directly caused [the]
constitutional harm’”; and (2) “a supervisor may be personally liable under § 1983 if he or she
participated in violating the plaintiff’s rights, directed others to violate them, or, as the person in
charge, had knowledge of and acquiesced in his subordinates’ violations.” A.M. ex rel. J.M.K. v.
Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (first quoting Stoneking v. Bradford
Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989), and then citing Baker v. Monroe Twp., 50 F.3d

1186, 1190–91 (3d Cir. 1995)). Although paragraph 9 of the Complaint only mentions Chief
Berkihiser’s official capacity, other allegations make clear that Ms. Peña is invoking personal
liability through both theories of supervisory liability. Defendants argue that the Complaint fails
to allege that Chief Berkihiser was “personally, affirmatively involved in the alleged
unconstitutional conduct” (Defs.’s Br. 26), but that claim is belied by Ms. Peña’s allegations that
police leadership (presumably including Chief Berkihiser) knew of constitutionally deficient
policies and practices (see Compl. ¶¶ 50–62 (describing deficient policies and other allegedly
similar lawsuits)), failed to correct them, and implicitly or explicitly approved of them.2
Accordingly, the Court will consider the sufficiency of the pleadings as to Chief Berkihiser in his
personal capacity.3
2. Consideration of Certain Video and Audio Recordings
Before considering Officer Arnold’s qualified immunity defense, the Court must address

whether it may consider video footage captured by his body-worn camera, as Defendants urge the
Court to do. (See Defs.’ Br. 1–2, 5–6; Defs.’ Reply 1–2, ECF No. 73.) Also at issue (though given
less attention by the parties) is an audio recording of the 911 call made by Mr. Muñoz’s sister.
“[T]he court in a motion on the pleadings reviews not only the complaint but also the answer and
written instruments attached to the pleadings.” Phillips v. Transunion, LLC, 2012 WL 1439088,
at *3 (E.D. Pa. Apr. 25, 2012) (quoting Sprague v. Neil, 2007 WL 3085604, at *2 (M.D. Pa. Oct.
19, 2007)). The Court may also consider matters of public record and any “undisputedly authentic

2 Courts have decided whether a police chief is a “policymaker” on a case-by-case basis.
See, e.g., Kelly v. Borough of Carlisle, 622 F.3d 248, 265 (3d Cir. 2010) (discussing two cases in
which “the determination that the chief of police was a policymaker was made only after
examining the chief’s responsibilities and decisionmaking authority with respect to the conduct at
issue”). At the pleadings stage, Ms. Peña has done enough to state a claim against Chief
Berikhiser, but further development of the record is needed to determine whether, under
Pennsylvania law, he possessed “final, unreviewable discretion” to make policy “in the particular
area of municipal business in question.” Id. (quoting Hill v. Borough of Kutztown, 455 F.3d 225,
245 (3d Cir. 2006)); see also Kocher v. Larksville Borough, 926 F. Supp. 2d 579, 606 (M.D. Pa.
2013) (suggesting that under Pennsylvania law, a municipal police chief is likely not a final
policymaker unless a mayor has delegated power to the police chief), aff’d, 548 F. App’x 813 (3d
Cir. 2013).
3 Following the U.S. Supreme Court’s decision in Iqbal, in which that Court rejected the
theory that “a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts
to the supervisor’s violating the Constitution,” 556 U.S. at 677, it remains unclear “whether Iqbal
eliminated—or at least narrowed the scope of—supervisory liability,” as the Third Circuit has
expressly declined to answer that question, Jankowski v. Lellock, 649 F. App’x 184, 188 (3d
Cir. 2016). In the absence of further guidance from the U.S. Supreme Court or the Third Circuit,
this Court will continue to entertain the two theories of supervisory liability endorsed by the Third
Circuit. A.M. ex rel. J.M.K., 372 F.3d at 586.
document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are
based on the document.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993).
Courts addressing this issue have generally advised caution in relying on video footage that

relates to only a portion of the events alleged in a complaint. See, e.g., Slippi-Mensah v. Mills,
2016 WL 4820617, at *3 (D.N.J. Sept. 14, 2016) (declining to consider dashboard footage of a
traffic stop that “only encompasse[d] one part of the events that are the basis for plaintiff’s claims”
and, in any event, did not fall within the Pension Benefit exception, because the mere existence of
“a video that captured the events complained of in the complaint . . . does not transform that video
into a ‘document’ upon which the complaint is based”); Velez v. Fuentes, 2016 WL 4107689, *8
(D.N.J. July 29, 2016) (declining to consider traffic stop footage in part because “the video does
not capture the events leading up to the stop, nor does it allow the Court to hear everything said
by Plaintiff”). Further, even if a plaintiff’s claims are indeed “based on” a recording, a court may
only consider it if it is “undisputedly authentic.” Pension Ben. Guar. Corp., 998 F.2d at 1196; see

also Brown v. City of San Diego, 2017 WL 3993955, at *2 (S.D. Cal. Sept. 11, 2017) (declining
“to consider the body-worn camera video evidence when deciding Defendants’ motion” for
judgment on the pleadings, because “Plaintiff asserts there is a ‘factual dispute as to what is shown
on the videos’ and contests the video evidence’s authenticity, stating that he does not, for example,
know whether ‘this video is all the video in the case’ or whether the video has been edited”).
From the outset, Ms. Peña disputes the authenticity of the video footage. (Pl.’s Br. 7
(claiming that the footage is “edited” and “[in]complete”).) The YouTube link provided in
Defendants’ answer does reflect at least minor editing and differs from the video attached to
Defendants’ Motion. In any event, Ms. Peña’s Complaint implicates significant events not

captured by the recordings, as in Slippi-Mensah and Velez. Consistent with those cases, the
recordings at issue are neither integral to the Complaint nor the basis for Ms. Peña’s claims. They
reveal little to nothing about, for example, Defendants’ previous interactions with Mr. Muñoz, the
adequacy of Defendants’ policies considering these interactions and other incidents, Officer
Arnold’s knowledge as he arrived at the scene, or the medical care required by Mr. Muñoz at

various points after the shooting.
Further, to the extent that Defendants ask the Court to resolve issues of factual
interpretation arising from the recordings, such as the reasonableness of Officer Arnold’s actions
considering various circumstances, that is an improper role for the Court to play in deciding a
Rule 12(c) motion. See Slippi-Mensah, 2016 WL 4820617, at *3 (reasoning that although a video
might properly evidence “that a particular identifiable statement was made,” a court cannot rely
on it, for purposes of a motion to dismiss, to resolve “issues of factual interpretation” posed by
“[t]he context of the statements, the identities and tone of voice of the speakers, [and] the decisions
that may have preceded or surrounded the [filmed event]” (quoting Liebler v. City of Hoboken,
2016 WL 3965198 (D.N.J. July 21, 2016))). And although aspects of the recordings arguably

contradict certain of Ms. Peña’s allegations, the Court does not rely on any such allegations in
resolving the present Motion. See Samoles v. Lacey Twp., 2014 WL 2602251, at *3 (D.N.J. June
11, 2014) (cautioning courts to “not draw inferences that are inconsistent with the video evidence”
(citing Scott v. Harris, 550 U.S. 372, 380–81 (2007))). The parties may, of course, rely on the
recordings at later stages of these proceedings and on a more fully developed record.
B. Count I Must Be Dismissed Because of Qualified Immunity for Officer Arnold
as to the Shooting of Mr. Muñoz
In furtherance of the purposes of qualified immunity—namely, protecting a defendant from
the burdens of even pretrial matters, such as discovery—controlling case law counsels the Court
to address Officer Arnold’s qualified immunity claim sooner rather than later. See, e.g., Oliver v.
Roquet, 858 F.3d 180, 188 (3d Cir. 2017) (overturning district court that postponed resolution of
qualified immunity claim pending further discovery) (citing Behrens v. Pelletier, 516 U.S. 299,
308 (1996); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)); see also Pearson v. Callahan, 555
U.S. 223, 231 (2009) (the issue of immunity should be resolved “at the earliest possible stage in

litigation”). For the present motion, “we look only to the complaint to see whether there is any set
of facts plaintiff can prove that would support a denial of immunity.” Kulwicki v. Dawson, 969
F.2d 1454, 1462 (3d Cir. 1992). Courts assess a claim of qualified immunity, which protects “all
but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S.
335, 341 (1986), by considering two prongs. “First, a court must decide ‘whether the facts that a
plaintiff has . . . shown make out a violation of a constitutional right.’” Spady v. Bethlehem Area
Sch. Dist., 800 F.3d 633, 637 (3d Cir. 2015) (quoting Pearson, 555 U.S. at 232). “[S]econd, the
court must determine ‘whether the right at issue was “clearly established” at the time of
defendant’s alleged misconduct.’” Id. (quoting Pearson, 555 U.S. at 236).
Here, Ms. Peña argues that judgment on the pleadings is inappropriate considering

differences between the facts alleged in her Complaint and those asserted by Defendants in their
Answer. (Pl.’s Br. 4–5.) As set forth below, the pleadings, when construed in favor of Ms. Peña,
satisfy the first prong of the qualified immunity analysis. To the extent that Defendants’ Answer
contradicts these allegations in a material way, those contradictions preclude judgment on the
pleadings as to that first prong. But under current case law, there is no set of facts that Ms. Peña
can prove that would satisfy the second prong of the qualified immunity analysis. Accordingly,
Officer Arnold is entitled to such immunity as to the shooting of Mr. Muñoz, and the Court must
dismiss Count I.
1. Violation of a Constitutional Right
Plaintiff alleges that Officer Arnold used excessive force in shooting Mr. Muñoz, thereby
violating his constitutional right to be free from unreasonable searches and seizures. The Third
Circuit has explained that “[t]o state a claim for excessive force as an unreasonable seizure under
the Fourth Amendment, a plaintiff must show that a ‘seizure’ occurred and that it was

unreasonable.” Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999) (citing Brower v. Cnty. of
Inyo, 489 U.S. 593, 599 (1989)). The parties do not dispute that a seizure occurred. See Tennessee
v. Garner, 471 U.S. 1, 7 (1985) (“[T]here can be no question that apprehension by the use of deadly
force is a seizure subject to the reasonableness requirement of the Fourth Amendment.”).
Accordingly, “[t]he pivotal question is when the use of deadly force is reasonable.” Abraham, 183
F.3d at 288.
Reasonableness depends on “the totality of the circumstances” leading up to an allegedly
unlawful seizure. Id. at 289–91. Without imposing “the 20/20 vision of hindsight,” and given “the
fact that police officers are often forced to make split-second judgments . . . in circumstances that
are tense, uncertain, and rapidly evolving,” Graham v. Connor, 490 U.S. 386, 396–97 (1989), this

Court must consider the following factors:
the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officer or others, . . . whether
he is actively resisting arrest or attempting to evade arrest by flight[,]
. . . the duration of the [officer’s] 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.
Couden v. Duffy, 446 F.3d 483, 496–97 (3d Cir. 2006) (first citing Carswell v. Borough of
Homestead, 381 F.3d 235, 240 (3d Cir. 2004), and then citing Sharrar v. Felsing, 128
F.3d 810, 822 (3d Cir. 1997)).
Ms. Peña alleges that Officer Arnold “responded to a call involving [Mr. Muñoz], who was
experiencing a mental-health crisis.” (Compl. ¶ 23.) Officer Arnold approached Mr. Muñoz’s
home “without waiting for backup” (id. ¶ 24), at which point Mr. Muñoz “retrieved a knife that he
had kept for self-defense” from his bedroom (id. ¶ 25). Ms. Peña alleges that Mr. Muñoz “then

exited his home, at which time he was immediately shot . . . .” (Id. ¶ 26.) Elsewhere, the Complaint
describes Mr. Muñoz as “running down the front steps of his family’s house in the officer’s
direction” and “moving down the sidewalk, as if trying to get past the officer.” (Id. ¶ 44.)
If these events, as framed by Ms. Peña, were the only relevant context to the shooting, they
would arguably justify Officer Arnold’s use of deadly force: Mr. Muñoz “pose[d] an immediate
threat to the safety of the officer or others”; he was “actively resisting arrest or attempting to evade
arrest by flight”; neither party disputes that he was armed with a knife; and Officer Arnold had
limited time to respond to Mr. Muñoz running towards him. Couden, 446 F.3d at 496–97; cf.
Johnson v. City of Philadelphia, 837 F.3d 343, 350 (3d Cir. 2016) (once an individual experiencing
drug-induced psychosis “began reaching for [the responding officer’s] gun, [the officer] was
justified in using deadly force to defend himself”).4 Ms. Peña, however, urges the Court to

consider additional context leading up to Officer Arnold’s arrival at the scene of the shooting, and
the Court agrees that weighing the “totality of the circumstances” requires doing so. See Abraham,
183 F.3d at 291 (“‘Totality’ is an encompassing word. It implies that reasonableness should be
sensitive to all of the factors bearing on the officer’s use of force.”); Johnson, 837 F.3d at 351
(“We do not automatically discount Plaintiff’s Fourth Amendment argument . . . that a ‘totality of

4 Further, even if Mr. Muñoz was only trying to “get past the officer” to flee—arguably an
unlikely interpretation of that conduct—the Supreme Court has held that “[w]here the officer has
probable cause to believe that the suspect poses a threat of serious physical harm, either to the
officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”
Garner, 471 U.S. at 11.
the circumstances’ analysis should account for whether the officer’s own reckless or deliberate
conduct unreasonably created the need to use deadly force.”).
The additional context that Ms. Peña emphasizes falls into two categories: (1) Mr.
Muñoz’s previous interactions with police, which should have informed and guided the response

to this incident; and (2) the strategies employed by Officer Arnold in particular, given his
knowledge of the situation and his training. As to the first category, Ms. Peña alleges that “on at
least five other occasions since 2019, including one just few weeks” prior to the shooting, Mr.
Muñoz’s family had reached out to municipal authorities “seeking assistance to manage [Mr.
Muñoz’s] schizophrenic episodes.” (Compl. ¶ 34.) Defendants allege that during one of these
prior interactions, Mr. Muñoz “had engaged in another unprovoked attacked involving a knife”
and, when officers arrived at the scene, had “ignored repeated commands from officers to drop the
knife.” (Answer ¶¶ 32–34.) Ms. Peña does not directly dispute this allegation but cites it as
creating a material issue of fact. (Pl.’s Br. 6.) In any event, given this history of prior interactions,
Ms. Peña alleges that Defendants “had become familiar with [Mr. Muñoz’s] psychiatric disability”

but failed to “place[] a hazard alert on the family’s home for future service calls.” (Compl.
¶¶ 33, 36.)
As to the second category, Ms. Peña argues that Officer Arnold’s strategy unnecessarily
resulted in Mr. Muñoz’s shooting. Mr. Muñoz’s sister allegedly informed a 911 operator that Mr.
Muñoz “had mental issues, including schizophrenia and bipolar disorder,” but that “there were no
weapons, drinking, or drug use involved” in the ongoing incident. (Id. ¶¶ 38–39.) Instead, the
family “simply needed help ‘with . . . bringing [Mr. Muñoz] to the hospital.’” (Id. ¶ 40.) It is not
clear from the pleadings what the dispatcher told Officer Arnold about the situation. The
Complaint alleges that “dispatch provided information to ARNOLD that [Mr. Muñoz] suffered

from a mental-health illness and was experiencing a mental-health crisis” (id. ¶ 41), but
Defendants’ denial focuses on the Complaint’s characterization of Mr. Muñoz’s sister’s 911 call
and says nothing about the dispatcher’s communications with Officer Arnold (Answer ¶¶ 37–41,
ECF No. 19). Further, the Answer later claims that Officer Arnold declined to wait for backup in
part because of the “lack of information regarding whether [Mr. Muñoz] was in possession of a

weapon” (id. ¶ 42), yet Mr. Muñoz’s sister allegedly informed the 911 operator that there were “no
weapons” involved in the incident (Compl. ¶ 39). Whatever the nature of Officer Arnold’s
knowledge, Ms. Peña alleges that he then approached her home “with no plan and without waiting
for backup.” (Id. ¶ 24.) As a result of these choices, Ms. Peña claims, “Defendant ARNOLD did
not have a de-escalation option planned and failed to utilize de-escalation tactics of any kind.” (Id.
¶ 45.)
Also related to the second category, Ms. Peña alleges that Officer Arnold “disregarded
police guidelines by not waiting for backup and by approaching the home on his own.” (Compl.
¶ 42.) Defendants, however, claim that “Officer Arnold approached Plaintiff’s residence in a
manner consistent with his training and experience . . . .” (Answer ¶ 24.) Defendants also claim

that the City and its police force “implement and enforce policies and practices to protect the
constitutional and civil rights of Lancaster citizens, including persons with mental health
disabilities during encounters with police.” (Id. ¶ 52.) The pleadings do not indicate the contents
of these policies and whether Officer Arnold in particular was aware of them.
The Third Circuit previously rejected a Fourth Amendment claim where a police officer,
by failing to wait for backup, allegedly unnecessarily escalated his encounter with a man
experiencing drug-induced psychosis. Johnson, 837 F.3d at 351–52. That case, however, involved
“exceptional circumstances” justifying the rejection of the plaintiff’s claim, including that “the
officer [was] rushed, choked, slammed into vehicles, and forcibly dispossessed of his service
weapon.” Id. Because not all cases will involve such “exceptional circumstances,” the Third
Circuit cautioned future courts as follows:
Given the extreme facts of this case, our opinion should not be
misread to broadly immunize police officers from Fourth
Amendment liability whenever a mentally disturbed person
threatens an officer’s physical safety. Depending on the severity
and immediacy of the threat and any potential risk to public safety
posed by an officer’s delayed action, it may be appropriate for an
officer to retreat or await backup when encountering a mentally
disturbed individual. It may also be appropriate for the officer to
attempt to de-escalate an encounter to eliminate the need for force
or to reduce the amount of force necessary to control an individual.
Nor should it be assumed that mentally disturbed persons are so
inherently unpredictable that their reactions will always sever the
chain of causation between an officer’s initial actions and a
subsequent use of force. If a plaintiff produces competent evidence
that persons who have certain illnesses or who are under the
influence of certain substances are likely to respond to particular
police actions in a particular way, that may be sufficient to create a
jury issue on causation. And of course, nothing we say today should
discourage police departments and municipalities from devising and
rigorously enforcing policies to make tragic events like this one less
likely.
Id. at 352–53.
Although the Third Circuit rejected the viability of the Johnson plaintiff’s claim at the
summary judgment stage and based on a lack of proximate causation, this Court finds the Third
Circuit’s admonition instructive at the pleadings stage as to the reasonableness of Officer Arnold’s
actions. First, whether it was inappropriate or unreasonable for Officer Arnold to decline to wait
for backup depends on “the severity and immediacy of the threat and any potential risk to public
safety posed by an officer’s delayed action.” Id. Here, Ms. Peña alleges that until Officer Arnold
arrived, Mr. Muñoz was unarmed, and his sister had informed the 911 operator accordingly. To
the extent that Defendants suggest that, based on prior interactions with Mr. Muñoz or yet-
undisclosed communications with the dispatcher, Officer Arnold acted with haste because he was
concerned that Mr. Muñoz was in fact armed or otherwise threatened public safety, those
allegations represent material issues of fact. Second, Ms. Peña alleges that Officer Arnold’s
unaccompanied approach violated law enforcement policies and precluded potential de-escalation
techniques, as contemplated by the Johnson court. Again, to the extent that Defendants argue that
Officer Arnold’s conduct complied with police policies, that represents a material issue of fact.

Although Mr. Muñoz’s subsequent actions certainly threatened Officer Arnold’s life, the Court
will not presume that Mr. Muñoz was “so inherently unpredictable” that his actions would not
have differed had Officer Arnold waited for backup and pursued de-escalation. Johnson, 837 F.3d
at 353.
For these reasons, the Court finds that the pleadings, when construed in favor of Ms. Peña,
sufficiently allege that Officer Arnold acted unreasonably by approaching Ms. Peña’s home,
without waiting for backup, to confront a then-unarmed individual suffering from a mental health
crisis. Defendants’ allegations to the contrary represent material issues of fact that preclude
judgment on the pleadings as to this element of the qualified immunity analysis.
2. Whether the Constitutional Right Was “Clearly Established”
The U.S. Supreme Court has explained that “[a] clearly established right is one that is

‘sufficiently clear that every reasonable official would have understood that what he is doing
violates that right.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Reichle v.
Howards, 566 U.S. 658, 664 (2012)). This Court, in identifying such a right, should not formulate
it “as a broad general proposition,” but rather must consider “the specific context of the case,” as
“[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine, here
excessive force, will apply to the factual situation the officer confronts.” Id. (first quoting
Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam), and then quoting Saucier v. Katz, 533
U.S. 194, 205 (2001)). In other words, the U.S. Supreme Court “do[es] not require a case directly
on point, but existing precedent must have placed the statutory or constitutional question beyond
debate.” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)); see also Hope v. Pelzer, 536
U.S. 730, 740–41 (2002) (“[O]fficials can still be on notice that their conduct violates established
law even in novel factual circumstances” or despite “notable factual distinctions . . . so long as the
prior decisions gave reasonable warning that the conduct then at issue violated constitutional

rights.” (quoting United States v. Lanier, 520 U.S. 259, 269 (1997))).
Defendants suggest that the “clearly established” rule here is that “deadly force is
constitutionally permitted when a suspect is wielding a knife in a threatening manner.” (Defs.’
Br. 13.) This framing does not comport with the U.S. Supreme Court’s guidance to consider the
specific context of the case and avoid general propositions. As explained above, a slew of
circumstances preceding the shooting bear on the excessive force claim in this case. Ms. Peña, on
the other hand, declines to identify a particular right (see Pl.’s Br. 13) and instead rests on the fact
that any context-specific right will require analysis of Officer Arnold’s training and knowledge of
the situation—circumstances that, as this Court explained above, are rife with material disputes
between the parties. Third Circuit precedent, however, makes clear that even when the pleadings

are construed in Ms. Peña’s favor—i.e., Officer Arnold believed that Mr. Muñoz was unarmed;
police policies counseled waiting for backup in such a scenario; and Officer Arnold’s approach of
Ms. Peña’s house unreasonably escalated the situation to a point where deadly force became
necessary—Officer Arnold did not violate any “clearly established” right.
In Abraham, the Third Circuit considered conflicting circuit court rulings concerning
liability for officers “based on their lapses in following police department procedures, even though
those lapses may have contributed to the use of force.” 183 F.3d at 295. The Third Circuit
expressly “le[ft] for another day how these cases should be reconciled.” Id. at 296. A few years
later, albeit in the context of jury instructions, the Third Circuit again acknowledged that it had not

adopted the doctrine that “an officer acts unreasonably if his improper conduct creates the situation
making necessary the use of deadly force.” Grazier ex rel. White v. City of Philadelphia, 328 F.3d
120, 127 (3d Cir. 2003). Then, in Neuburger v. Thompson, the Third Circuit cited the Abraham
court’s ambivalence to conclude that the plaintiff had not “allege[d] the violation of a clearly
established constitutional right.” 124 F. App’x 703, 706–07 (3d Cir. 2005).

Finally, the Third Circuit’s guidance in Johnson, summarized above, counseled this Court
to weigh Officer Arnold’s decision to proceed without backup against factors such as “the severity
and immediacy of the threat and any potential risk to public safety posed by an officer’s delayed
action.” 837 F.3d at 353. The Johnson court further advised that “[i]t may also be appropriate for
the officer to attempt to de-escalate an encounter to eliminate the need for force or to reduce the
amount of force necessary to control an individual,” and that “nothing we say today should
discourage police departments and municipalities from devising and rigorously enforcing policies
to make tragic events like this one less likely.” Id. Although this Court deployed these principles
to find that the present pleadings, when construed in Ms. Peña’s favor, sufficiently allege the
violation of a constitutional right (or, at the very least, reflect material issues of fact that preclude

judgment on the pleadings as to that prong), it does not follow from this general guidance that the
Third Circuit in Johnson had clearly established a right not previously endorsed in Abraham,
Grazier, or Neuburger. Indeed, because of the “exceptional circumstances” presented by the facts
in Johnson, the Third Circuit declined to apply its guidance to the very case before it.
Accordingly, this Court cannot say that the Third Circuit has “clearly established” that a
police officer violates the constitutional rights of an individual experiencing a mental health crisis
when that officer fails to wait for backup—potentially in contravention of police policies—and
that decision contributes to the need for deadly force. Cf. Wilson v. Borough of Bellmawr, 2016
WL 7377114, at *13 (D.N.J. Dec. 20, 2016) (holding that officers confronting a suicidal man—

who was armed with a knife and barricaded in his room—did not violate any clearly established
right by declining to wait for a SWAT team to arrive). Notwithstanding this Court’s finding that
Ms. Peña has sufficiently pleaded that Officer Arnold violated Mr. Muñoz’s constitutional rights,
this Court cannot, on its own, decree those rights to be clearly established. For that reason, Officer
Arnold is entitled to qualified immunity as to the shooting of Mr. Muñoz, and the Court must

dismiss Count I.
C. Material Issues of Fact Preclude Judgment on the Pleadings as to the
Individual Defendants in Count IV
Ms. Peña alleges that following the shooting, which occurred at around 4:00 p.m., several
police officers other than Officer Arnold arrived at the scene and not only failed to provide Mr.
Muñoz with medical care themselves but also allegedly prevented the provision of such care by
canceling an ambulance that was already en route. (Compl. ¶ 64.) Ms. Peña further claims that
the officers took this action despite that her neighbors pleaded with them to call an ambulance and
attempt to save Mr. Muñoz’s life. (Id. ¶ 65.) According to the coroner, Mr. Muñoz died at 6:35
p.m. (Id. ¶ 66.) Based on the gap between Mr. Muñoz’s shooting and time of death, Ms. Peña
reasons that Defendants had over two hours to attempt to provide medical care to Mr. Muñoz (id.
¶ 67) and that their failure to do so amounts to deliberate indifference to Mr. Muñoz’s medical
needs (id. ¶102). Consequently, Count IV of the Complaint brings a claim against Officer Arnold,
Chief Berkihiser, and the City for this alleged denial of medical assistance.
As to Officer Arnold, the Third Circuit has held that “[d]eliberate indifference to the
medical needs of arrestees violates their Fourteenth Amendment right to due process.” Smith v.

Gransden, 553 F. App’x 173, 177 (3d Cir. 2014). To succeed on such a claim, “a plaintiff must
show (i) a serious medical need, (ii) acts or omissions by law enforcement officials that indicate
deliberate indifference to that need, and (iii) a causal connection between the indifference and the
plaintiff’s injury.” Id. (cleaned up). Defendants do not contest the first element but argue instead
that Officer Arnold immediately requested medical care for Mr. Muñoz (Answer ¶ 67), approached
Mr. Muñoz with the other unknown officers and determined that Mr. Muñoz had died shortly after
the shooting (a finding later corroborated by a fire department EMT that arrived in the meantime
(id. ¶ 65)), and only canceled the ambulance en route after making this determination (id. ¶ 64).

Defendants fail to address the significance, if any, of the coroner’s determination that Mr. Muñoz
died at 6:35 p.m.
For this particular claim, there is perhaps no issue of fact more material than Mr. Muñoz’s
time of death: if it occurred shortly after the shooting, then the window for assessing the officers’
alleged indifference to Mr. Muñoz’s medical needs narrows significantly, and the decision to
cancel the ambulance call may not reflect deliberate indifference. Cf. Sullivan v. Warminster Twp.,
765 F. Supp. 2d 687, 702–03 (E.D. Pa. 2011) (no deliberate indifference where officers “expedited
an ambulance” to treat an individual suffering from gunshot wounds). The parties’ pleadings and
briefing reflect significant dispute as to this circumstance, however, and the coroner’s alleged
determination is neither attached to the Complaint nor addressed by Defendants. On this disputed

record, judgment on the pleadings for Count IV is inappropriate.
As to Chief Berkihiser, this Court explained above two theories of supervisory liability that
may apply in this case: (1) “[i]ndividual defendants who are policymakers may be liable under
§ 1983 if it is shown that such defendants, ‘with deliberate indifference to the consequences,
established and maintained a policy, practice or custom which directly caused [the] constitutional
harm’”; and (2) “a supervisor may be personally liable under § 1983 if he . . . , as the person in
charge, had knowledge of and acquiesced in his subordinates’ violations.” A.M. ex rel. J.M.K.,
372 F.3d at 586. Ms. Peña, who focuses on a pattern of excessive force violations (Compl. ¶¶ 55–
58), does not appear to allege that, under the second above theory, Chief Berkihiser knew of denial-

of-care violations. She has, however, alleged that Officer Arnold and other responding officers
lacked sufficient medical training under the relevant policies and practices (Compl. ¶¶ 64, 104),
that this deficiency led to an unlawful denial of medical care (id. ¶ 64), and that Chief Berkihiser
had the power to correct such deficiencies but, with deliberate indifference, failed to do so (id.
¶ 11). Accordingly, she has stated a claim for liability as to Chief Berkihiser under at least one of
the theories of supervisory liability.5 The Court addresses the City’s liability in section II.E. below.

D. Except for the Negligent Hiring Claim, Ms. Peña Has Stated Grounds for
Relief in Count V
Count V asserts a claim of negligent hiring, training, supervision, and monitoring against
the City, the County (now dismissed from this case), and Chief Berkihiser. Because the City’s
liability is addressed below, the Court addresses only Chief Berkihiser here. At the outset, the
Court notes that although Ms. Peña frames these claims as sounding in negligence, “ordinary
negligence cannot support a § 1983 action,” which instead must be supported by deliberate
indifference or gross negligence. Hill v. Borough of Coaldale, 2008 WL 11502049, at *6 (M.D.
Pa. Sept. 8, 2008) (gathering cases).
Turning to the portion of this Count directed to the hiring of Officer Arnold, the Court finds
that it must dismiss this basis for relief. To satisfy the deliberate indifference required to hold
Chief Berkihiser (or the City, for that matter) liable, Ms. Peña must show that “adequate scrutiny
of an applicant’s background would lead a reasonable policymaker to conclude that the plainly
obvious consequence of the decision to hire the applicant would be the deprivation of a third
party’s federally protected right.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S.

397, 411 (1997); see also id. at 412 (culpability “must depend on a finding that this officer was

5 None of the Defendants have claimed qualified immunity for this alleged violation of Mr.
Muñoz’s constitutional rights.
highly likely to inflict the particular injury suffered by the plaintiff”). Ms. Peña has offered no
allegations concerning Officer Arnold’s background, and accordingly she has failed to plead a
claim relating to his hiring. This deficiency likewise precludes finding liability for Chief
Berkihiser on the second supervisory theory that he, “as the person in charge, had knowledge of

and acquiesced in his subordinates’ violations.” A.M. ex rel. J.M.K., 372 F.3d at 586.
Ms. Peña’s claims concerning insufficient training and supervision, however, survive as to
Chief Berkihiser. As discussed above, she has alleged that police leadership (presumably
including Chief Berkihiser) knew of constitutionally deficient policies and practices (see Compl.
¶¶ 50–62), failed to correct them, and implicitly or explicitly approved of them. She has likewise
tied these deficiencies to her son’s death. Ms. Peña, therefore, has stated a claim against Chief
Berkihiser under his supervisory liability.6
E. Counts II, IV, V, and XI Survive as to the Liability of the City under Monell
In Counts II, IV, V, and XI, Ms. Peña seeks to establish liability under section 1983 arising
from the shooting of Mr. Muñoz (Count II), the denial of medical care thereafter (Count IV), the
deficient training and supervision practices of the police department (Count V), and the unlawful

detention of Ms. Peña following the shooting (Count XI). Having addressed the liability of

6 Defendants argue that the Pennsylvania Political Subdivision Tort Claims Act (“PSTCA”)
also precludes Ms. Peña’s claim for negligent hiring, training, supervision, and monitoring. (Defs.’
Br. 27.) The PSTCA, however, “does not affect § 1983 claims.” Thomas v. Cnty. of Chester,
Pocopson Home, 312 F. Supp. 3d 448, 452 n.26 (E.D. Pa. 2018) (gathering cases). Although
Count V does not expressly mention section 1983, it links the relevant training and supervision
practices to “the deprivation of [Mr. Muñoz’s] constitutional rights under the Fourth and/or
Fourteenth Amendments to the U.S. Constitution.” (Compl. ¶ 110.) Accordingly, the Court
declines to construe Count V as a common law or state law negligence claim that the PSTCA
would bar.
individual defendants above,7 the Court now considers whether Ms. Peña can maintain these
claims against the City.
1. Elements of Monell at the Pleadings Stage
In Monell, 436 U.S. at 690, the U.S. Supreme Court held that plaintiffs may bring
section 1983 claims against municipalities and other local government units if “the action that is

alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body’s officers.” Monell liability may also
extend to a “governmental ‘custom’ even though such a custom has not received formal approval
through the body’s official decisionmaking channels.” Id. at 691. Liability will not extend to a
municipality, however, “solely because it employs a tortfeasor—or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior theory.” Id.
The Third Circuit has explained that “a § 1983 claim against a municipality may proceed
in two ways. A plaintiff may put forth that an unconstitutional policy or custom of the municipality
led to his or her injuries, or that they were caused by a failure or inadequacy by the municipality
that reflects a deliberate or conscious choice.” Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019)

(cleaned up). Plaintiffs pursuing the first theory must either “point to an official proclamation,
policy or edict by a decisionmaker possessing final authority to establish municipal policy on the
relevant subject” or, if alleging a custom, “evince a given course of conduct so well-settled and
permanent as to virtually constitute law.” Id. at 105–06.
The second theory—which encompasses claims involving a failure to train and “other
failures and inadequacies by municipalities, including those related to supervision and discipline

7 Defendants did not argue that Ms. Peña failed to state a claim against the unknown police
officers who arrested her after the shooting of her son (Count XI), and accordingly the Court
considers only whether Count XI survives as to the City.
of its police officers,” see id. at 105—requires “demonstrating a failure or inadequacy amounting
to deliberate indifference on the part of the municipality,” see id. at 106; see also City of Canton,
Ohio v. Harris, 489 U.S. 378, 387–89, 391 (1989) (Monell liability for failure to train officers may
attach in “limited circumstances”—namely, “where the failure to train amounts to deliberate

indifference to the rights of persons with whom the police come into contact,” and the deficient
training is “closely related to the ultimate injury”). Plaintiffs may establish deliberate indifference
by showing “whether (1) municipal policymakers know that employees will confront a particular
situation, (2) the situation involves a difficult choice or a history of employees mishandling, and
(3) the wrong choice by an employee will frequently cause deprivation of constitutional rights.”
Forrest, 930 F.3d at 106 (citing Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999));
see also Connick v. Thompson, 563 U.S. 51, 62–64 (2011) (“Without notice that a course of
training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately
chosen a training program that will cause violations of constitutional rights,” but “in a narrow
range of circumstances,” a plaintiff may also pursue “single-incident” liability where “the

unconstitutional consequences of failing to train could be so patently obvious that a city could be
liable under § 1983 without proof of a pre-existing pattern of violations.”).
Establishing these elements is often a tall task for plaintiffs and, generally, requires both
“a plaintiff to plead facts outside his or her personal knowledge” and a court to examine “matters
beyond the pleadings, a task which cannot be undertaken in the context of a motion to dismiss.”
3909 Realty LLC v. City of Philadelphia, 2021 WL 2342929, at *4 (E.D. Pa. June 8, 2021). For
those reasons, the Third Circuit has held that an “insistence that [the plaintiff] must identify a
particular policy and attribute it to a policymaker, at the pleading stage without benefit of
discovery, is unduly harsh.” Carter, 181 F.3d at 357–58.
2. Whether a Lack of Primary Liability Precludes Municipal Liability
Defendants argue that for liability to attach to the City, “Plaintiff must first establish that
one of its employees is primarily liable under § 1983.” (Defs.’ Br. 23.) Because this Court found
that Officer Arnold is entitled to qualified immunity as to the shooting of Mr. Muñoz, Defendants
would have the Court find that there can be no Monell liability for the City as well for purposes of

Count II.
The case law on this point is not as clear as Defendants would have it. One the one hand,
the Third Circuit has held that because the Monell court rejected municipal liability on a theory of
respondeat superior, a municipality “cannot be vicariously liable under Monell unless one of [its]
employees is primarily liable under section 1983 itself.” Williams v. Borough of W. Chester, Pa.,
891 F.2d 458, 467 (3d Cir. 1989). But on the other hand, a lack of primary liability for a police
officer would not necessarily preclude finding, pursuant to Monell, that a municipality maintained
a policy or custom that resulted in a constitutional violation, and the Third Circuit has since
recognized as much. See Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996) (“The precedent in
our circuit requires the district court to review the plaintiffs’ municipal liability claims

independently of the section 1983 claims against the individual police officers, as the City’s
liability for a substantive due process violation does not depend upon the liability of any police
officer.”); Simmons v. City of Philadelphia, 947 F.2d 1042, 1062–63 (3d Cir. 1991) (explaining
that Monell requires a kind of primary liability as to a “high-level official” with policymaking
authority but not as to a “low-level employee,” such as Officer Arnold here).
Further complicating the picture, certain courts in this District have endorsed the view—
shared by various circuit courts but not addressed by the Third Circuit—that “[i]f the right at issue
is not ‘clearly established’ [for purposes of qualified immunity], then any assertion of deliberate
indifference is substantially undercut because, by definition, there are no ‘clear constitutional
guideposts’ for the municipality to follow in developing policy.” Lewis v. City of Philadelphia,
2020 WL 1683451, at *12 (E.D. Pa. Apr. 6, 2020) (quoting Harris, 489 U.S. at 397 (O’Connor,
J., concurring)); accord Outlaw v. City of Philadelphia, 2021 WL 3471168, at *8 (E.D. Pa. Aug. 6,
2021). This Court agrees that the lack of a clearly established right “undercuts” the likelihood that

a municipality was deliberately indifferent to that right, but the Court will not treat such a lack as
a per se bar to Monell liability.
3. Whether Ms. Peña Has Sufficiently Pleaded Monell Liability
In her Complaint, Ms. Peña makes the following allegations about City policies and
customs that lead to constitutional violations for excessive force: the City “operated a
dysfunctional disciplinary system for Lancaster Police officers accused of serious misconduct”
because it “almost never imposes significant discipline against police officers accused of violating
the civil and constitutional rights of members of the public” and lacks any “mechanism for
identifying police officers who are repeatedly accused of engaging in misconduct” (Compl. ¶ 50);
the City investigates excessive force claims in-house or through the local district attorney rather
than through an independent entity (id. ¶ 51); the foregoing policies or customs “embolden[]”

officers “to act with impunity to violate the constitutional and civil rights of citizens” (id. ¶ 52);
the City “has deficient policies and practices regarding officer supervision and training” because
it has inadequately structured officer supervision and failed to invest in it sufficiently (id. ¶¶ 53–
54); and, finally, the City’s use-of-force policies insufficiently provide for less-than-lethal tactics,
de-escalation tactics, and strategies particular to individuals suffering from a mental health crisis
(id. ¶ 106). Ms. Peña also points to two lawsuits involving alleged excessive force (id. ¶¶ 55–57)
and comments by the then-Mayor of Lancaster acknowledging the legitimacy of certain
unspecified lawsuits (id. ¶ 59). Ms. Peña claims that there have been additional lawsuits based on
constitutional violations and that the City has “paid millions of dollars to settle excessive-force
lawsuits,” though Ms. Peña does not provide citations for these allegations.
When referring to Defendants’ customs and training relating to medical care, Ms. Peña
alleges that the unknown police officers responding to the shooting “had no special medical

training” and consequently “failed to provide [Mr. Muñoz] with necessary medical attention.”
(Compl. ¶¶ 64, 101.) Ms. Peña faults this lack of training for also causing the officers to
“intervene[] to prevent [Mr. Muñoz] from getting emergency medical attention by cancelling the
ambulance that had previously been dispatched to the scene.” (Id. ¶ 64.)
Defendants largely deny these allegations, citing “extensive policies and progressive
training in a number of relevant areas to include policies regarding use of force, first aid, de-
escalation, and welfare checks.” (Answer ¶ 50.) Such policies and training include “use of force
training and CPR and first aid training.” (Id. ¶ 52.) Defendants also detail the police department’s
internal complaint-tracking software, called IAPro, as well as both internal and external
supervision (the latter including independent entities such as the Lancaster County District

Attorneys’ Office, the Pennsylvania State Police, and the City’s own internal affairs team). (Id.
¶¶ 50–51.) Finally, Defendants dispute the significance of the lawsuits referenced by Ms. Peña on
the grounds that “[o]ver the past three (3) years only eleven (11) incidents have resulted in
litigation out of the approximately 141,000 calls responded to by the Bureau (0.000078%, or 1 out
of every 12,819), and none have resulted in a finding by the Court, or a jury, that the City or its
officers violated the constitutional rights of the litigant.” (Id. ¶ 58.) Defendants likewise note that
“Officer Arnold has never been named as a defendant in any lawsuit, nor received a single citizen
complaint since he became an officer at the Bureau.” (Id.)
Ms. Peña’s claims “sound[] in both” the “policy-and-custom” theory and the “failure-or-

inadequacy” theory. Forrest, 930 F.3d at 106. In Count II, for example, she has alleged a custom
of impunity in cases of excessive force due to a dysfunctional disciplinary system and underfunded
supervisory apparatus, and such allegations also support a claim of failure to adequately train
police officers concerning use-of-force guidelines. Count V likewise alleges both deficient
customs and training concerning less-than-lethal tactics, de-escalation tactics, and mental health

crisis strategies. The allegations pertaining to Count IV, the alleged denial of medical care,
arguably focus only on a failure to train police officers in first aid, but Ms. Peña has at least
mentioned that “policies and practices” also contributed to the denial of care. As to Count XI,
regarding the unlawful detention of Ms. Peña, the Court construes her allegations about deficient
training and disciplinary review to also apply to improper arrests and detentions. Indeed, Ms. Peña
cites a case in which another individual was arrested by being pushed up against a vehicle, causing
her injuries. (Compare id. ¶ 57 (describing that lawsuit) with id. ¶¶ 139–40 (detailing Ms. Peña’s
allegedly unlawful arrest and detention).)
Defendants, in response, have pointed to their extensive training programs, their complaint-
tracking software, and a general lack of judgments against the police for constitutional violations.

At the present stage of this case, however, Ms. Peña has not been able to investigate through
discovery the sufficiency of Defendants’ training, disciplinary system, and supervision. As in
Carter, Ms. Peña “is not engaged in a mere fishing expedition.” 181 F.3d at 358. Instead, she
claims that the potential deficiencies in how the City responds to its citizens’ mental health crises
allegedly caused the death of her son. Accordingly, judgment on the pleadings is inappropriate
for Counts II, IV, V, and XI.
F. The PSTCA Does Not Bar Counts VI, VII, X, and XII
In Counts VI, VII, X, and XII, Ms. Peña alleges various intentional torts, including
wrongful death, intentional infliction of emotional distress, and two counts of battery (for the
shooting of Mr. Muñoz and police officers’ subsequent contact with Ms. Peña herself). She brings
these claims under Pennsylvania law and without reference to the deprivation of constitutional or
federal rights, and because these are therefore not section 1983 claims, the Court must consider
the effect of the PSTCA.
Certain of these counts were brought against not just the individual officers but also the

City, and considering that the PSTCA precludes municipal liability both for intentional torts and
negligence (subject to exceptions not applicable here), see 42 Pa. Stat. and Cons. Stat. Ann.
§§ 8541, 8542(a)(2), Ms. Peña has withdrawn those claims against the City. She contends,
however, that she has sufficiently pleaded that the individual officers acted with the requisite
“actual malice or willful misconduct” that deprives them of immunity under the PSTCA. Id.
§ 8545 (providing employees with the same immunity afforded to local government); id. § 8550
(providing exceptions to such immunity). Courts have explained that “willful misconduct is a
demanding level of fault,” and accordingly, “the conduct of a police officer will only constitute
willful misconduct if the officer committed misconduct which the perpetrator recognized as
misconduct and which was carried out with the intention of achieving exactly that wrongful

purpose.” Sullivan, 765 F. Supp. 2d at 707 (cleaned up) (first quoting Sanford v. Stiles, 456 F.3d
298, 315 (3d Cir. 2006), and then quoting Waldon v. Borough of Upper Darby, 77 F.Supp.2d 655,
658 (E.D. Pa. 1999)). The requisite intent is also present if the officer “was aware that [the desired
result] was substantially certain to ensue.” Orange Stones Co. v. City of Reading, 87 A.3d 1014,
1023 (Pa. Commw. Ct. 2014).
Counts VI and VII bring claims of battery and wrongful death relating to the shooting of
and denial of care to Mr. Muñoz. (The battery claim applies to Officer Arnold only; the wrongful
death claim, to all Defendants other than the City.) Although this Court found above that, based
on the pleadings, Officer Arnold acted unreasonably in approaching Ms. Peña’s home, that does

not equate to finding that he acted with willful misconduct. See Sullivan, 765 F. Supp. 2d at 707–
08 (“[W]hen courts analyze the actions of police officers, the gulf between unreasonable conduct
and willful misconduct is a large one.”). Ms. Peña, however, has also alleged that Officer Arnold
knew that Mr. Muñoz “was experiencing a mental-health crisis,” that he was not armed (at least at
the time of the 911 call), and that police guidelines required Officer Arnold to wait for backup and

pursue de-escalation tactics. (Compl. ¶¶ 39, 41–42.) Ms. Peña also alleges that Officer Arnold
and other police officers intervened to prevent medical attention despite having no special medical
training. (Id. ¶ 64.) These allegations state a plausible claim that the officers engaged in
misconduct knowing that the allegedly wrongful outcome in this case was substantially certain to
ensue. Likewise, the Court found above that Ms. Peña has sufficiently pleaded Chief Berkihiser’s
deliberate indifference to police policies and practices that allegedly violate individuals’
constitutional rights, and for those same reasons, she has provided allegations sufficient to remove
Chief Berkihiser from PSTCA immunity. Defendants, of course, vehemently deny these
allegations, but at most, such denials preclude judgment on the pleadings.
Counts X and XII arise from injuries suffered by Ms. Peña herself and assert claims of

intentional infliction of emotional distress and battery. (Following Ms. Peña’s withdrawal of
certain claims as to the City, Count X applies to Officer Arnold; Count XII, to unknown police
officers.) Because the alleged emotional distress suffered by Ms. Peña represents another
substantially certain result of the alleged misconduct discussed above, the Court finds that PSTCA
immunity does not apply. Likewise, Ms. Peña alleges that after the shooting of her son, “various
police officers tackled Plaintiff, Miguelina Peña, against a police vehicle, which resulted in serious
bruising on her leg.” (Compl. ¶ 148.) At this early stage in litigation, the Court views the restraint
of Ms. Peña as a substantially certain outcome of the shooting of her son, and because the Court
has found that such shooting, as pleaded, involved willful misconduct, the Court declines to apply

PSTCA immunity to Count XII at this time.
Finally, although Defendants raised the issue of PSTCA immunity in their briefing, they
have not argued that Ms. Peña has failed to set forth each claim’s substantive elements.
Accordingly, because the Court has rejected the application of PSTCA immunity for all
Defendants other than the City, Counts VI, VII, X, and XII survive Defendants’ Motion.8

G. Judgment on the Pleadings is Inappropriate as to Count IX
The last remaining claim, Count IX,9 seeks relief from the City pursuant to the Americans
with Disabilities Act (“ADA”). The Third Circuit has applied the ADA to police officers making
an arrest of an individual with a disability. Haberle v. Troxell, 885 F.3d 170, 180 (3d Cir. 2018).
To state claim under that law, a plaintiff must satisfy four elements: “(1) he is a qualified
individual; (2) with a disability; (3) [who] was excluded from participation in or denied the benefits
of the services, programs, or activities of a public entity, or was subjected to discrimination by any
such entity; (4) by reason of his disability.” Id. at 178 (quoting Bowers v. Nat’l Collegiate Athletic
Ass’n, 475 F.3d 524, 553 n.32 (3d Cir. 2007)). Defendants assert that Ms. Peña has failed to
establish the third of these elements. The Third Circuit has explained that the requisite
discrimination “includes failing to make reasonable accommodations for a plaintiff’s disabilities.”

Id. at 180 (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999)).
As Defendants point out, however, because such accommodations must be reasonable, the
presence of exigent circumstances may reduce or altogether eliminate any possibility of

8 The Court notes that its grant of qualified immunity to Officer Arnold does not bear on the
state law claims asserted against him, as “qualified immunity is a defense only to violations of
federal law under § 1983. Immunity from state law claims is governed by the state’s immunity
doctrine.” El v. City of Pittsburgh, 975 F.3d 327, 334 n.3 (3d Cir. 2020) (citing In re City of
Philadelphia Litig., 49 F.3d 945, 957 (3d Cir. 1995)).
9 Ms. Peña agreed to withdraw Count VIII concerning alleged violations of Pennsylvania
civil rights law.
accommodation. (Def.’s Br. 18–19 (gathering cases).) In particular, Defendants rely on a Sixth
Circuit case in which police responded to an individual with an intellectual disability who had
threatened his father with a machete. Thompson v. Williamson Cnty., Tennessee, 219 F.3d 555,
556 (6th Cir. 2000). Police were informed of the weapon and the family’s desire that the individual

be transported to a hospital. Id. When an officer confronted the individual and ordered him to
drop his weapon, the individual instead approached the officer and raised the machete as though
he were preparing to throw it at the officer, after which the officer shot and killed him. Id.
This case and others may support the proposition that a “reasonable” accommodation in
emergency situations may be limited or no accommodation at all.10 Such cases, however, differ
from the pleadings in the present one. Here, Ms. Peña alleges that Mr. Muñoz’s sister informed
the 911 operator that Mr. Muñoz dealt with mental illness, that “there were no weapons, drinking,
or drug use involved” in the emergency, and that the family “simply needed help ‘with you
bringing [Mr. Muñoz] to the hospital.’” (Compl. ¶¶ 38–40.) She also claims that a dispatcher
provided Officer Arnold with this same information as he was en route to Ms. Peña’s home. (Id.

¶ 41.) In this version of events, Officer Arnold is not responding to circumstances as exigent as
those in Thompson; instead, at this point, it remained an option for Officer Arnold to await backup
and develop a plan to deescalate the situation—in other words, pursue a reasonable
accommodation of Mr. Muñoz’s mental health emergency. Only after Officer Arnold approached
the home and Mr. Muñoz ran toward him with a knife does this case come to resemble Thompson.
To be sure, another plausible version of events is that Officer Arnold, while en route, was in fact

10 The Court notes, however, that the Sixth Circuit rested its decision on the fourth element,
not the third. The Sixth Circuit reasoned any discrimination or denial of medical services (under
the third element above) was by reason of the individual’s “violent, threatening behavior,”
Thompson, 219 F.3d at 558, not “by reason of his disability” (pursuant to the fourth element).
informed that Mr. Muñoz was armed or otherwise threatening the safety of others. Officer Arnold
may also have been aware of prior incidents with Mr. Muñoz, including one allegedly consisting
of an “unprovoked attack involving a knife.” (Answer ¶¶ 32–34.) These allegations, however,
represent material issues of fact and therefore preclude judgment on the pleadings.11

H. Punitive Damages
For claims under section 1983, “a jury may be permitted to assess punitive damages . . .
when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461
U.S. 30, 56 (1983). That said, municipal entities such as the City here are immune from punitive
damages. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). But contrary to
Defendants’ cursory assertion (Defs.’ Br. 30), Ms. Peña has indeed alleged that Officer Arnold
acted with “reckless indifference to [Mr. Muñoz’s] constitutional rights” in denying him medical
care (Compl. ¶ 102) and that Chief Berkihiser acted with “deliberate indifference” to the
deficiencies in police policies and practices (id. ¶ 109–10). Accordingly, the Court will not reject
the possibility of punitive damages at this time.

IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion is granted in part and denied in part. A
corresponding order accompanies this memorandum.

11 The Court likewise declines to find that compensatory damages are unavailable under the
ADA. To recover such damages, a plaintiff must provide “proof of ‘intentional discrimination,’”
which, in turn, requires showing deliberate indifference. Haberle, 885 F.3d at 181 (quoting S.H.
ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 261 (3d Cir. 2013)). The Court has
already decided that judgment on the pleadings is inappropriate for Ms. Peña’s Monell claims,
which also depend in part on that same showing of deliberate indifference. Accordingly, judgment
on the pleadings is inappropriate here as well.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10405909. Public record. Not legal advice.