DONAHUE v. BOROUGH OF COLLINGDALE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTINA DONAHUE, AS CIVIL ACTION

ADMINISTRATRIX OF THE ESTATE

OF ANGEL MCINTYRE, DECEASED; NO. 22-1695

MATTHEW MUNAFO; KRISTYANNA

DELLAVECCHIA,

Plaintiffs,

v.

BOROUGH OF COLLINGDALE;

BOROUGH OF DARBY; DANTE

LYNCH; JAKE LYONS, COLIN

RICHERS,

Defendants.

MEMORANDUM RE: SUMMARY JUDGMENT

Baylson, J. February 1, 2024

This lawsuit stems from fatal events on July 16, 2020 in Delaware County, in the Eastern

District. Anthony Jones, while fleeing police at high-speed, struck a vehicle occupied by Matthew

Munafo and Angel McIntyre. Ms. McIntyre was killed on impact and Mr. Munafo was ejected

from the car and suffered serious brain injury.

High-speed police pursuits, however necessary for law enforcement, also pose an

incredible danger to the public. This danger is not new. In the last forty-five years over 11,500

people have lost their lives as a result of a pursuit,1 averaging several hundred deaths per year.2

1 Thomas Frank, High-Speed Police Chases Have Killed Thousands of Innocent Bystanders, USA Today, Jul. 30,

2015, https://perma.cc/5QXB-G5HD (last accessed Jan. 26, 2024).

2 National Highway Traffic Safety Administration, Fatality Analysis Reporting System: 2015-2020 (2020).

The need for police training and proper departmental policy is self-evident, reported, 3 and of great

concern to law enforcement.4

At summary judgment, this Court confronts two distinct questions. First, did the officers’

behavior, in choosing to engage in this high-speed pursuit, “shock the conscience? And second,

regardless of officer liability, did the municipalities demonstrate deliberate indifference to the

public, by allowing a custom of reckless pursuits or failing to train officers on police pursuits, that

caused Plaintiffs’ injuries? As to question one, the officers are entitled to summary judgment

because they did not intend to harm McIntyre or Munafo while pursuing an actively fleeing

suspect. However, the claims against the municipal Defendants will proceed to trial. Genuine

disputes over three material facts require this decision. Because the municipalities were on notice

of prior dangerous pursuits that may have violated their pursuit policies, the municipalities took

no remedial action—investigation, discipline, or retraining—after these prior pursuits, and the

municipalities may have failed to provide any meaningful training to their officers for when to

engage in high-speed pursuits, a jury must decide if their actions, as established at a trial in this

case, constituted deliberate indifference to the public’s wellbeing.

I. PROCEDURAL HISTORY AND BACKGROUND

Plaintiffs filed suit against individual Officers Richers, Lyons, Lynch, and Boroughs

Collingdale and Darby on May 3, 2022. Compl., ECF 1. They allege ten counts. Compl. ¶¶ 88–

148. All Plaintiffs assert Fourteenth Amendment Substantive Due Process violations against

3 Geoffrey P. Alpert & Patrick R. Anderson, The Mostly Deadly Force: Police Pursuits, 3 JUST. Q. 1 (1986).

4 See, e.g., HUGH NUGENT ET AL., U.S. DEP’T OF JUST., RESTRICTIVE POLICIES FOR HIGH-SPEED POLICE PURSUITS iv

(1990) (report discussing need for proper pursuit policy and training due to “major public concern”); POLICE

EXECUTIVE RESEARCH FORUM, VEHICULAR PURSUITS: A GUIDE FOR LAW ENFORCEMENT EXECUTIVE ON MANAGING

THE ASSOCIATED RISKS 1 (2023) (recommending pursuit policies to police chiefs and other law enforcement

executives).

individual Defendants and Monell5 claims against the Boroughs of Collingdale and Darby (Counts

I and II).6 Id. at ¶¶ 88–104. Additionally, they argue individual Defendants and Boroughs engaged

in negligent, or alternatively “reckless” conduct, under Pennsylvania law (Counts III, IV, V, and

VI).7 Id. at ¶¶ 105–25. Finally, Plaintiff Dellavecchia argues individual officers negligently or

alternatively intentionally inflicted emotional distress in causing her sister’s death (Counts IX and

X). Id. at ¶¶ 138–48.

This Court denied Defendants’ Motion to Dismiss. Donahue v. Borough of Collingdale,

2022 WL 3577377 (E.D. Pa. Aug. 19, 2022), Extensive discovery followed.

Defendants moved for Summary Judgment on all claims.8 Briefing and oral argument

followed.

A. Summary of Oral Argument

This Court heard oral argument on the pending motions for summary judgment on January

25, 2024. Counsel responded to this Court’s questions, previously served, most of which pertained

to the alleged liability of the individual officer Defendants. Plaintiffs continued to maintain that

the individual officer Defendants had acted improperly and violated Plaintiffs’ civil rights.

Plaintiffs conceded that the first leg of the pursuit, discussed infra, was not dangerous to the public

and did not contend that any individual officers intended to harm the public. This Court, having

5 Monell refers to the Supreme Court case that established municipalities are liable for certain constitutional violations

under 42 U.S.C. § 1983. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 692 (1978).

6 These claims are viable through § 1983.

7 Decedent McIntyre’s estate styles Count VII and VIII, which advance claims under Pennsylvania’s Wrongful Death

and Survival Act, as independent cause of action. Compl. at ¶¶ 126–37. It is well established that these statutes do not

create independent claims, but are merely methods to assert legal claims that resulted in the proper plaintiff’s death.

Mohney v. Pennsylvania, 809 F. Supp. 2d 384, 389 n. 6 (W.D. Pa. 2011).

8 Defendants point out that Plaintiff Dellavecchia, who was a bystander, but did not suffer any physical injury, joins

in the constitutional and negligent driving claims that directly stem from the accident. Defs. Collingdale and Richers

Mot. Summ. J. at 19, ECF 66. Because Dellavecchia was not physically injured in the accident, she cannot, as a matter

of law, recover for any claims other than her emotional distress, and this Court will GRANT Defendants summary

judgment for Counts I–VIII as to Dellavecchia.

reviewed the officers’ videos of the pursuit, finds that Defense counsel’s verbal summary of the

video was generally more accurate than Plaintiffs counsel’s description.

II. LEGAL STANDARD

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). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict

for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual

dispute is “material” if it might affect the outcome of the case under governing law. Id.

A party seeking summary judgment always bears the initial responsibility for informing

the district court of the basis for its motion and identifying those portions of the record that it

believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue

at trial, the moving party’s initial burden can be met simply by “pointing out to the district court

that there is an absence of evidence to support the non-moving party’s case.” Id. at 325. After the

moving party has met its initial burden, the adverse party’s response must, by “citing to particular

parts of materials in the record,” show that a fact is “genuinely disputed.” Fed. R. Civ. P. 56(c)(1).

Summary judgment is appropriate if the non-moving party fails to rebut by making a factual

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.” Celotex, 477 U.S. at 322. Under Rule 56,

the Court must view the evidence presented on the motion in the light most favorable to the

opposing party. Anderson, 477 U.S. at 255.

III. FEDERAL CLAIMS

Generally, the government is not responsible to protect citizens from third-party dangers.

DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 196 (1989).

However, the Third Circuit carved out an exception to this rule when the state or government entity

or agency has taken affirmative steps to “render [an individual] any more vulnerable” to a danger.

Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996) (quoting DeShaney, 489 U.S. at 201). Under

this “state-created danger” doctrine, a substantive due process claim emerges when an individual

proves:

(1) he sustained a foreseeable and direct harm;

(2) that the state action was taken with a degree of culpability that shocks the conscience;

(3) a relationship with the state making the plaintiff a foreseeable victim; and

(4) an affirmative use of state authority in a way that created a danger, or made others more

vulnerable than had the state not acted at all.

Johnson v. City of Philadelphia, 975 F.3d 394, 400 (3d Cir. 2020).9 Plaintiffs argue the pursuit

was a state-created danger for which both individual officer and Borough Defendants are liable.

A. Claims Against Individual Officers

The Third Circuit is no stranger to this variety of claim. Both the appellate court and many

in-circuit district courts have addressed officer and government liability to bystanders during

vehicle pursuits. See, e.g., Davis v. Township of Hillside, 190 F.3d 167 (3d Cir. 1999); Sauers v.

Borough of Nesquehoning, 905 F.3d 711 (3d Cir. 2018); Thomas v. City of Philadelphia, 2002

WL 32350019 (E.D. Pa. Feb. 7, 2002) (Kauffman, J.). In short, this Court writes upon well-trod

principles.

9 While binding law in this Circuit, the state-created danger test remains unexamined by the Supreme Court. Johnson,

975 F.3d at 399–400.

The analysis centers on the second prong: when does a police chase “shock the

conscience?”10 The critical question is when an officer runs afoul of the Constitution while

attempting to capture a fleeing suspect.

That “level of culpability required to shock the contemporary conscience falls along a

spectrum,” depending on the facts of each case. Sauers, 905 F.3d at 717 (internal quotations and

citations omitted). There are three potential standards, varying based on “how much time a police

officer has to make a decision.” Id. First, in a “hyperpressurized environment,” an action cannot

shock the conscience unless the officer harbored “an intent to harm.” Haberle v. Troxell, 885 F.3d

170, 177 (3d Cir. 2018). Second, when the scenario allows an officer “a matter of hours or minutes”

before taking action, he is liable when he “disregard[s] a great risk of serious harm.” Johnson, 975

F.3d at 401 (internal quotations and citations omitted). Finally, when the officer has time to make

“an unhurried judgment,” the plaintiff need only show the officer acted with “deliberate

indifference” to a plaintiff’s rights Id. (internal quotations and citations omitted).

Under binding precedent, high-speed police chases are “hyperpressurized environments

requiring a snap judgment.” Id. (internal quotations and citations omitted); Davis, 190 F.3d at 170.

This is so because weighing “the need to stop a suspect’s flight from the law against the threat a

high-speed chase poses to others demand[s] an officer’s instant judgment,” lest the wrongdoer

escape. Davis, 190 F.3d at 170 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 853

(1998)). Thus, “[i]n the circumstances of a high-speed chase aimed at apprehending a suspected

offender . . . only a purpose to cause harm unrelated to the legitimate object of arrest will” shock

the conscience. Lewis, 523 U.S. at 851.

10 Defendants’ motions for summary judgment contest this second element of the claim. They do not attack the other

three elements.

1. Undisputed Facts of Officers’ Conduct During the July 16, 2020 Pursuit

On July 16, 2020 at approximately one in the morning, Defendant Richers, a part-time

police officer for Defendant Borough of Collingdale was on patrol in downtown Collingdale.

Defs.’ Collingdale and Richers Statement of Facts ¶ 30, ECF 66–1 (“Defs.’ Collingdale SAF”).

Collingdale is a one-square mile jurisdiction a few miles south of Philadelphia with just under

9,000 residents. Id. at ¶ 29.

Richers saw a vehicle, later determined to be driven by Anthony Jones, with a non-

functioning back taillight. Richers Mobile Video Recorder 00:42–:57, Pls.’ Ex. J (“Richers

MVR”).11 Jones also improperly made an illegal left turn. Id. At that point, Richers activated his

emergency lights to stop Jones for these summary traffic offenses. Defs.’ Collingdale SAF ¶¶ 13–

14.12 Jones initially slowed, allowing Richers to see Jones and a female passenger in the back-

driver’s side seat. Richers MVR 1:00–:10. Richers assumed at least one other passenger was in the

front passenger seat. Defs.’ Collingdale SAF ¶ 79. After approximately 30 seconds, Jones came to

a complete stop in the intersection of Springfield and MacDade. Richers MVR 1:10–:43.

After about 10 seconds and as the light turned yellow, Jones accelerated away from

Richers. Richers MVR 1:45–2:00. Richers radioed that Jones was “taking off” on him, “not really

going fast, just not stopping.” Id.

Officer Defendants from Darby Borough heard Richers dispatch. Lyons Dep. 67:13–70:24,

Pls.’ Ex. I, ECF 79–1; Lynch Dep. 159:13–163:08, Pls.’ Ex. F, ECF 77. Darby Borough is

approximately the same geographic and population size as Collingdale, bordering the town to the

north (i.e. closer to Philadelphia). Deposition testimony established that officers frequently

11 When, as here, video evidence clearly captures many of the events, the Court may take them as true. Scott v. Harris,

550 U.S. 372, 380–81 (2007).

12 Neither party disputes that Richers had, at minimum, reasonable articulable suspicion, if not probable cause, to stop

Jones as required under law. United States v. Delfin-Colina, 464 F.3d 392, 397 (3d Cir. 2006).

assisted each other with traffic stops on the border of the two Boroughs. Lynch Dep. 94:03–96:12;

Lyons Dep. 67:13–68:13. When Defendant Lyons and Lynch, part-time Darby officers, heard

Richers’ communications about the traffic stop, they headed toward Richers’ reported location.

Lyons Dep. 67:13–70:24; Lynch Dep. 159:13–163:08. Throughout the ensuing chase Richers was

the only officer Defendant who communicated on the radio channel. Richers MVR 1:00-4:40.

After approximately 30 seconds Jones pulled into a McDonalds, which Richers reported

via radio. Richers MVR 2:05–:10. Jones stopped again, briefly, in the McDonalds parking lot. Id.

at 2:28–:40. At that time, a third occupant was visible in the vehicle. Id. Richers told Jones to “stop

the car” and “turn the car off.” Id.

Instead, Jones quickly accelerated away from Richers, who reported that he was “taking

off again through the drive-thru.” Id. at 2:37–:47.

Unbeknownst to Richers, Officer Lyons had driven into the drive-thru exit in order to

physically prevent Jones from exiting the parking lot. Lyons Dep. 71:10–72:12. No evidence

suggests Officer Lyons received training in blockade technique. Id. at 46:02–19.

As Jones turned the corner toward the exit, he confronted Lyons’ police van and a civilian

car in drive-thru. Richers MVR 2:41–:52 While maneuvering between the two vehicles, Jones hit

the back corner of Lyons’ van. Id. Lyons was uninjured and did not feel threatened in any way by

the contact. Lyons Dep. 81:12–:23. The van sustained scrapes and minor denting on the back

bumper. Richers Dep. 211:19–22, Pls.’ Ex. E, ECF 97. Officer Richers, when seeing the collision,

radioed that Jones “just hit a [Darby] van.” Richers MVR 2:47–:50.

Officer Lynch was approaching the McDonalds when he heard Richers’ dispatch and saw

Jones exit the parking lot onto MacDade Avenue. Lynch Dep. 169:05–171:16. Almost

immediately after Jones’ exit, Lynch engaged in hot pursuit behind Jones with his emergency lights

active. Richers MVR 2:50–:55. Richers followed behind Lynch. Id. Within ten seconds multiple

other police vehicles joined in the pursuit. Id. at 2:50-3:00.

Officer Lynch (in the lead), Richers (directly behind Lynch), and several other officers

followed Jones for the next 90 seconds. Id. at 2:50–4:20. During the pursuit, which occurred on

MacDade Blvd with a 25–35 mile per hour speed limit, the officers crossed at least 20 intersections.

Id.; Defs.’ Darby, Lynch, and Lyons Statement of Facts ¶ 77, ECF 68–1 (“Defs.’ Darby SAF”).

The officers used their audio sirens at various points when crossing intersections. Richers MVR

2:50–4:20. MacDade Blvd is commercial and residential during that span, and alternates between

one to two lanes in each direction at different points. Id. at 2:50–4:20

Jones sped upwards of 80 miles per hour, ran multiple red lights, and crossed over into

oncoming traffic during the pursuit in order to pass civilian drivers. Defs.’ Darby SAF ¶ 25;

Richers MVR 2:50-4:20. Richers and Lynch mirrored Jones’ actions in pursuit. Richers MVR

2:50–4:20. Then, approximately 90 seconds after leaving the McDonalds, Jones ran another red

light and “t-boned” a car occupied by Angel McIntyre and Matthew Munafo. Pls.’ Statement of

Fact in Resp. to Defs. Darby, Lynch, and Lyons Mot. Summ. J. ¶ 96, ECF 99 (“Pls.’ Darby SAF”).

McIntyre died almost instantaneously from impact. Id. Munafo ejected a hundred feet into the

street. Id. Kristyana Dellavecchia, McIntyre’s sister, was in a car directly behind Munafo and

McIntyre and saw her sister perish. Dellavecchia Dep. 51:14–52:04, Pls.’ Ex. B, ECF 85–1.13

13 Jones was prosecuted and convicted of murder for McIntyre’s death. Vinny Vella, A Delco Man Was Convicted of

Killing a Teen While Fleeing from Police in 2020, Phil Inquirer. (Mar. 3, 2020), https://perma.cc/P9TK-B9GC.

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2. Disputed Facts of the Pursuit“

Three dashboard cameras capture the pursuit. As such, the parties agree on much of what

transpired. Still, they disagree at what point the “pursuit” begin? Defendants contend Jones’

collision with Lyons’ van in the parking lot triggered the pursuit. Defs. Darby, Lynch, and Lyons

Mot. Summ. J. at 5, ECF 68 (“Darby Summ. J.”); Defs. Collingdale and Richers Mot. Summ. J. at

4, ECF 66 (“Collingdale Summ. J.”). Plaintiffs argue the “pursuit” started when Jones first stopped

prior to McDonalds and then again when Jones accelerated in the parking lot but before hitting

Lyons’ van. Pls.’ Resp. to Darby Mot. Summ. J. at 4-5, ECF 84; Pls.’ Resp. to Collingdale Mot.

Summ. J. at 4-5, ECF 71. Defendants point to Richers and other officers’ testimony that they did

'4 Defendants filed two separate motions for summary judgement, and Plaintiffs filed responses to each. The motions

and responses largely duplicate each other. This memorandum will not cite each motion for summary judgment and

each response when the parties’ positions are identical.

10

not perceive Jones’ initial flight, because of its low speed and turn into McDonalds, as triggering

a pursuit. Defs.’ Collingdale SAF ¶¶ 36–37; Lynch Dep. 165:09–166:16. Plaintiffs argue Richers

transmitting “he’s taking off on me” and the narratives from contemporaneous police reports show

the pursuit began prior to McDonalds. July 16, 2020 Collingdale Incident Report, Pls.’ Ex. N, ECF

73–1; Collingdale Pursuit After Action Report, Pls.’ Ex. R, ECF 73–4; Pennsylvania Police Pursuit

Report, Pls.’ Ex. S, ECF 73–5.

3. Application

Plaintiffs argue the intermediate “hours or minutes” standard applies. Relying on Sauers,

Plaintiffs point out that Officers Richers, Lyons, and Lynch had minutes to weigh the costs and

benefits of chase before engaging in the high-speed pursuit. Pls.’ Resp. to Collingdale at 12–13.

According to them, the several minutes that passed between the initiation of the stop and when

Jones took off in the McDonalds parking lot constituted opportunity for “hurried deliberation.” Id.

Richers, Lyons, and Lynch’s disregard of “great risk” to the public by pursuing Jones, they argue,

shocks the conscience. Id. at 10–14; Pls.’ Resp. to Darby at 11–15.

This Court cannot agree. The rule is clear—an “intent to harm”, not “disregard of great

risk” mens rea applies to high-speed chases. See Lewis, 523 U.S. at 853–54; Fagan v. City of

Vineland, 22 F.3d 1296, 1306–07 (3d Cir. 1994) (en banc) (holding that intent to harm rather than

reckless or gross negligence mens rea appropriate for police pursuit cases) (cited approvingly in

Lewis, 523 U.S. at 839) (“Fagan II”)

Sauers did not change that rule. There, the defendant officer witnessed a Dodge Neon

commit a traffic infraction. Sauers, 905 F.3d at 715. The officer radioed ahead to a neighboring

jurisdiction to pull over the Dodge when it crossed into its territory. Id. But rather than wait, the

officer decided to catch up to the Dodge. Id. To do so, he drove recklessly and at high speeds,

eventually crashing and killing the Plaintiff. Id. Critically, however, no evidence suggested the

Dodge was aware of the officer’s pursuit.15 In other words, the pursuit was not a chase, but instead

a one-sided display of reckless driving to hunt down a traffic ticket.

When choosing to use the lesser “disregard of great risk” standard, the Third Circuit

delineated a two-part test. It applies to a “reckless pursuit of an individual suspected of a summary

traffic offense [1] when there is no pending emergency and [2] when the suspect is not actively

fleeing police.” Sauers, 905 F.3d at at 717 (emphasis added). While there is genuine dispute over

whether Jones’ flight constituted a pending emergency, there is no doubt that Jones, unlike the

Dodge in Sauers, was refusing to yield to police. But the Sauers test is conjunctive and, therefore,

inapplicable when, as here, only one prong is met. As such, the well-established principle that an

officer needs an intent to harm governs.16

There is no genuine issue of fact to show that Lyons, Lynch, or Richers intended any harm

distinct from apprehending Jones. Uncontradicted deposition testimony demonstrates a singular

motive to detain Jones. Richers Dep. 164:08–16, 405:18–406:16; 416:03–417:07, Lynch Dep.

123:06–124:07, 217:02–15. Moreover, none of the potential deviations from pursuit policy

plausibly suggest Lyons, Richers, or Lynch intended to hurt anyone. Plaintiff’s own expert agrees.

15 When the Dodge arrived in the neighboring jurisdiction, the police stopped the driver and did not arrest him for any

crimes, such as the state felony applicable to a driver “who willfully fails or refuses to bring his vehicle to a stop, or

who otherwise flees or attempts to elude a pursuing police officer, when given a visual and audible signal to bring the

vehicle to a stoop.” Sauers, 905 F.3d at 715 n.2; 75 Pa. Stat. and Cons. Stat. Ann. § 3733(a).

16 The Sauers rule is not only binding, but also makes sense. An individual actively fleeing police poses a distinct and

greater danger to the public than someone who simply commits a summary traffic offense.

Ironically, Defendants, likely in order to construe Officer Richers’ actions as consistent with the pursuit policy,

adamantly refute that the initial interaction before the McDonalds was a “pursuit.” Under their own characterization,

then, one could argue this situation is closer to Sauers because no active flight or pursuit was underway when Officer

Richers began to follow Jones. But whether the initial action is a pursuit or not is immaterial for the Plaintiffs’ claims

against the officers. Following Jones to the McDonalds at low-speed and in the proper lane of traffic did not pose a

great risk of harm, as Plaintiffs conceded at oral argument. The relevant leg of the pursuit, attendant with the purported

“high-speed” and reckless driving that caused injury, began when Jones fled the McDonalds. At that moment, followed

quickly by Jones’ collision with Lyons’ van, the officers had to make a snap judgment whether to continue to pursue

a fleeing suspect.

In his Report, Plaintiffs’ expert Paul M. Pazen, former Denver Police Chief, opines the officers

disregarded a great risk of serious harm, articulating the “hurried deliberation” standard, not intent

to harm. Pazen Report IV.A.i.6; iii.2, Pls.’ Ex. W, ECF 98–2. And in their Complaint, Plaintiffs

only allege the officers “disregarded the risk of [bystander] injuries by prioritizing the effort to

apprehend” Jones. Compl. at ¶ 93. They never seriously advance any facts to show an intent to

harm anyone, let alone McIntyre or Munafo.17 Therefore, this Court will grant summary judgment

for the officers on the § 1983 claims.

B. Monell Claims

But what of Plaintiffs’ claims against the Boroughs? The Third Circuit confronted a near-

identical fact pattern three decades ago. In Fagan v. City of Vineland, the Court considered whether

a municipality could violate substantive due process even when no individual officer was liable

during a vehicle pursuit. 22 F.3d 1283, 1291 (3d Cir. 1994) (“Fagan I”). As here, the plaintiffs

were struck and killed by a fleeing suspect in a pursuit initiated over a summary traffic offense. Id.

at 1288–89. The officers were not liable because they did not intend to harm the bystander. Fagan

II, 22 F.3d at 1308.18

But, the panel held “that in a substantive due process case arising out of a police pursuit,

an underlying constitutional tort can still exist even if no individual police officer violated the

Constitution.” Fagan I, 22 F.3d at 1292. This is so because while an officer, faced with a snap

17 This Court also finds that Officer Lyons participation was limited to the McDonalds parking. His action, plausibly

stated as blocking the exit and remaining in the parking lot, is too tenuously related to the terminal crash over a mile

away to satisfy causation. Jewell v. Ridley Tp., 2011 WL 5524260 at *12 (E.D. Pa. Nov. 10, 2011) (dismissing claims

against officers in pursuit chase when “no facts” supported that officers’ conduct “was a substantial factor in causing

the accident.”) (Surrick, J.) aff’d, 497 F. App’x 182 (3d Cir. 2012); Fulkerson v. City of Lancaster, 801 F. Supp. 1476,

1485 (E.D. Pa. 1992) (Van Antwerpen, J.), aff’d, 993 F.2d 876 (3d Cir. 1993) (dismissing claims against officer

involved in pursuit located far from crash on lack of proximate cause).

18 To avoid potential reader confusion, the Third Circuit published two “Fagan v. Vineland” opinions on the same day,

albeit with different reporter cites. The first held that municipal and officer liability were not co-extensive, Fagan I.

The second, an en banc decision, held the proper mens rea for officer liability during pursuits was intent to harm.

Fagan II.

judgment, must intend to harm to accrue liability, the municipality, armed “with a wealth of

information” and “fully aware of the dangers” of police pursuits ex ante, is liable when its pursuit

custom or failure to train officers demonstrates a “deliberate indifference” to life or liberty. Id. In

fact, it “is easy to imagine a situation where an improperly trained police officer may be ignorant

of the danger created by his actions,” while the municipality knows them but “deliberately

refuse[s] to require proper training.” Id. Allowing a municipality to profit from the protections

rightfully shielding the on-the-beat officer could “lead to illogical results.” Id. In such cases, the

“pursuing police officer is merely the causal conduit for the constitutional violation committed by

the City.” Id.

This Court recognizes that Fagan I has triggered much commentary, including from the

Third Circuit, since its publication. See Grazier ex rel. White v. City of Philadelphia, 328 F.3d

120, 124 n.5 (3d Cir. 2003) (confining Fagan I “to its facts: a substantive due process claim

resulting from a police pursuit”); Mark v. Borough of Hatboro, 51 F.3d 1137, 1153 n.13 (3d Cir.

1995) (suggesting the Fagan I panel misconstrued the law). Yet grumblings are not grounds for

reversal. To the contrary, the Third Circuit has confirmed that a municipality may be

“independently liable for a substantive due process violation” even when no officer is liable since

Fagan I. See Sanford v. Stiles, 456 F.3d 298, 314 (3d Cir. 2006) (per curiam); Brown v.

Commonwealth of Pennsylvania, Dep't of Health Emergency Med. Servs. Training Inst., 318 F.3d

473, 482 (3d Cir. 2003) (citing Fagan I holding approvingly). And most recently, the Court

reaffirmed that municipal liability is cognizable, even when officer liability is not, so long as its

finding would not create an “inconsistent verdict.” Mervilus v. Union County, 73 F.4th 185, 196–

97 (3d Cir. 2023) (emphasis in original). Following Fagan I, because the level of “shocks the

conscience” culpability is different for officers and municipalities in police pursuit cases,

municipal liability is not inconsistent with granting summary judgment for the officers. Id.; see,

e.g., Igwe v. Skaggs, 2017 WL 395745, at *8 (W.D. Pa. Jan. 30, 2017) (granting motion to dismiss

as to officer defendants in pursuit but denying it with respect to municipality).

Municipalities are liable when they maintain a “policy or custom” that violates

constitutional rights. Thomas v. Cumberland County., 749 F.3d 217, 222 (3d Cir. 2014). When the

policy or custom is not on its face unconstitutional, plaintiffs must show the custom was “the

moving force behind the constitutional tort” of its employees. Colburn v. Upper Darby Township,

946 F.2d 1017, 1027 (1991). A “policy” is an act of the official decision-making body while

“customs” are subterranean practices that are “so widespread as to have the force of law.” Bd. of

Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 404 (1997).

Failure to train claims represent another vintage of municipal liability. Connick v.

Thompson, 563 U.S. 51, 61 (2011). To make out a failure to train claim, plaintiff must prove the

inadequate training amounted to a “deliberate indifference to the rights of persons with whom the

police come into contact.” Canton v. Harris, 489 U.S. 378, 388 (1989). Only then “can such a

shortcoming be properly thought of as a[n actionable] city ‘policy or custom.’” Id. at 389.

Ordinarily, a plaintiff must show a pattern of similar constitutional deprivations to demonstrate

that policymakers “continued adherence to an approach that they know or should know has failed

to prevent tortious conduct,” in “conscious disregard for the consequences of [officer] actions.”

Connick, 563 U.S. at 62.

Custom and failure to train claims bear a “close relationship” because both usually rest on

the municipality’s pattern and practice of behavior. Forrest v. Parry, 930 F.3d 93, 106 (3d. Cir.

2019).19 To prevail on a custom theory, a plaintiff must show an infirm “course of conduct so well-

settled and permanent as to virtually constitute law.” Forrest, 930 F.3d at 106. Meanwhile for

failure to train claims, plaintiffs often need a history of past inadequacies to reveal “scienter-like

evidence” of municipal indifference in response to constitutional deprivations. Simmons v. City

of Philadelphia, 947 F.2d 1042, 1060–62 (3d Cir. 1991).

Additionally, the custom or failure to train must be the “moving force” behind the

plaintiff’s injury. Sanford, 456 F.3d at 314. For custom cases, plaintiffs need an “affirmative link”

between the custom and the constitutional injury. Est. of Roman v. City of Newark, 914 F.3d 789,

798 (3d Cir. 2019). With failure to train, the frequency of a recurring situations and predictability

that an officer will respond improperly without adequate training establishes causation. Id. at 800

(citing Brown, 520 U.S. at 409–10).

Here, the overlap in claims is near total because the answer to whether the municipalities

were deliberately indifferent to pursuit-related injuries—the second prong in the state-created

danger test—is essential for both the custom and failure to train claims.20 See Roman, 914 F.3d at

799 n.7.

19 The Third Circuit has gone as far as describing “failure to train” cases as a “subcategory of policy or [custom]

liability.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev’d on other grounds Taylor v. Barkes,

575 U.S. 822 (2015).

20 Judge Pratter’s thoughtful analysis in Washington-Pope v. City of Philadelphia is instructive. The underlying

question is whether the Boroughs demonstrated deliberate indifference to Plaintiffs’ constitutional interest in liberty

or life. 979 F. Supp. 2d 544, 573–80 (E.D. Pa. 2013). That mens rea, coupled with causation, makes out liability. Id.

Undoubtedly, a jurist could lose themselves in the Russian nesting dolls of mens rea elements in this Monell claim.

Formalistically, the elements of a Monell failure to train theory are (1) an underlying constitutional violation (here,

state created danger, which requires deliberate indifference of the municipality) (2) to which the municipality was

deliberately indifferent. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 123 (1992). But such legal grafting

approaches tautology—the municipality is deliberately indifferent to its deliberate indifference? Along with Judge

Pratter, other courts have attempted to “untangle[e]” this “conundrum.” See Est. of Thomas v. Fayette Cnty., 194 F.

Supp. 3d 358, 378–81 (W.D. Pa. 2016). This Court is satisfied that the relevant inquiry, per Fagan, is much simpler:

deliberate indifference to the publics’ liberty or life in pursuits makes out liability. Washington-Pope, 979 F. Supp. 2d

at 573–80.

1. Undisputed Facts of Boroughs’ Pursuit Policies21

Collingdale and Darby maintain police pursuit policies. The polices, while not identical,

require officers balance the safety of the public, other officers, and the fleeing suspect against the

immediate and potential danger if the suspect remains at large, before and while engaging in

vehicle pursuits. Collingdale Pursuit Policy, Pls.’ Ex. V, ECF 98–1.; Darby Pursuit Policy, Pls.’

Ex. Y, ECF 98–3. The policies outline various factors for officers to consider when assessing the

danger of a given pursuit (i.e. time of day, population density of pursuit area, seriousness of the

suspected offense), dictate that only two vehicles should be involved in a pursuit, require a

supervisor oversee the pursuit, including the decision to continue or terminate it, mandate that

officers relay certain information to supervisors and dispatch regarding the pursuit, and constrain

the manners and methods officers may deploy in pursuit. Collingdale Policy IV; Darby Policy at

2–5.

The policies apply when officers may pursue. The Collingdale policy prohibits officers

from engaging in pursuits over summary traffic violations or when the danger of the pursuit is

greater than the danger of the suspect fleeing. Collingdale Policy IV.A.2. The Darby policy

authorizes pursuits only when a “serious violation” of the law has or is about to occur and the

pursued individual poses an immediate or potential danger that outweighs the risks of a pursuit.

21 Parties filed many of the exhibits related to the pursuit policies under seal. However, the Third Circuit has long

recognized “a presumption of public access, to all judicial records, proceedings, opinions and orders and related

pleadings and exhibits.” Larry Pitt & Assocs. v. Lundy L., LLP, 346 F. Supp. 3d 761, 766 (E.D. Pa. 2018) (Rufe, J.)

(citing Republic of the Philippines v. Westinghouse Electric Corp., 949 F.2d 653, 659 (3d Cir. 1991)). The right to

public access specifically “applies to documents and evidentiary materials submitted in support of summary judgment

. . . because the need for public scrutiny is at its zenith when the motion is dispositive and is of a comparable level

when the motion is denied because the ruling tends to shape the scope and substance of the litigation as the parties

proceed to trial.” Mine Safety Appliances Company v. North River Insurance Company, 73 F. Supp. 3d 544, 560

(W.D. Pa. 2014). Neither party has overcome this hefty presumption of public access here, which concerns to

documents that are over five years old, do not appear to be operative today, and are highly material for this case’s

disposition. See Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 129 F.R.D. 483, 485 (D.N.J. 1990) (“[t]he purported

need for protection is substantially diminished where the passage of time has made such documents stale.”).

Darby Policy at 2. Additionally, under the Darby policy, only officers trained in “pursuit driving”

may engage in a pursuit. Darby Policy at 2 (emphasis in original).

2. Undisputed Facts of Prior Collingdale and Darby Pursuits

Between 2013 and this incident, Collingdale disclosed involvement in 26 vehicle pursuits.

Collingdale Incident Reports, Pls.’ Ex. BB, ECF 98–4. Darby disclosed involvement 30 to 35

vehicle pursuits. Darby Incident Reports, Pls.’ Ex. CC. Moreover, Collingdale’s disclosed pursuits

necessarily undercount the accurate number, because several of Darby’s reported pursuits were

initiated by Collingdale. Darby Incident Reports at 4–5, 7, 39, 134. Nonetheless, none of these

Darby reported pursuits were included in Collingdale’s reported pursuits. See Collingdale Incident

Reports. Several of the reported pursuits resulted in bystander car accidents and injuries. Pazen

Report III.C.i–ii. Moreover, Darby designee and current Police Chief Joseph Gabe testified that

the several of Darby’s past incidents, based on the police reports transcribing the events, violated

the pursuit policy. Pls.’ Darby SAF ¶ 147.

3. Undisputed Facts of Collingdale and Darby’s Pursuit Training and Procedure

Neither Collingdale nor Darby recalled providing any formal training on pursuit decision-

making or driving beyond giving officers the written policies. Pls.’ Statement of Fact in Resp. to

Defs.’ Collingdale and Richers Mot. Summ. J. ¶¶ 119, 122–27, 130, ECF 98 (“Pls.’ Collingdale

SAF”); Pls.’ Darby SAF ¶ 134. In Police Academy officers learned how to maneuver their

vehicles, including how to pursue suspects. Defs.’ Darby SAF ¶¶ 44–45, 64, 91; Defs.’ Collingdale

SAF ¶¶ 170, 188. However, the State training did not include, and the Boroughs could remember,

conducting any training for deciding when to pursue beyond providing the written policy. Felker

Dep. 129:23–130:17, Pls.’ Ex. U, ECF 90–3; Darby Dep. 51:12–52:07, Pls.’ Ex. X, ECF 82–2.

Neither Borough could recall any post-pursuit reviews, investigation, or discipline for any of the

pursuits between 2013 and 2020. Felker Dep. 55:03–56:04; Darby Dep. 234:06–20. Additionally,

both Boroughs had failed to follow Pennsylvania law that requires police departments report all

vehicle pursuits to a state-wide database prior to this incident. Pls.’ Collingdale SAF ¶¶ 145–55.

Darby did not report any of its pursuits. Id. Collingdale reported four. Id.

4. Disputed Facts Whether the Pursuit Violated Collingdale and Darby’s Policies

Parties disagree whether the officers’ conduct during the pursuit violated the governing

Collingdale and Darby policies. Defendants and Plaintiffs characterize the danger of the pursuit,

the involvement of other officers, and the role of supervision differently. Plaintiffs argue that the

number of vehicles on the road and disregard of road rules created a high-risk and high-speed

pursuit. Pls.’ Resp. to Darby at 13–14; Pls.’ Resp. to Collingdale at 13–15. Defendants contend

the risks were not as substantial. Darby Summ. J. at 5. Plaintiffs also argue there was no adequate

supervision of the pursuit, while Defendants counter that Sargent Finley, Collingdale’s senior

officer on duty, adequately monitored and supervised the incident. Pls.’ Darby SAF ¶¶ 84–87;

Defs.’ Collingdale SAF ¶¶ 131, 141, 164, 181–82. Finally, Plaintiffs and Defendant disagree over

how many other vehicles followed Jones in pursuit. Pls.’ Darby SAF ¶¶ 69–70, 92, 94; Defs.’

Darby Reply to Pls.’ SAF ¶¶ 69–70, 92, 94, ECF 102–1.

5. Application

i. Officers Conduct May Have Violated Pursuit Policies

As a preliminary matter, it is a disputed and material fact whether this pursuit violated

Collingdale and Darby pursuit policies. This is material because Plaintiffs do not challenge the

written policies. Consequently, if the officers properly followed an admittedly constitutional

written policy, no violation could lie. Reviewing the record, many genuine disputes arise on this

point. For instance, was Officer Richers engaged in a “pursuit”—radioing to over ten jurisdictions

that Jones was “taking off on” him—over summary traffic offenses prior to reaching McDonalds;

was Officer Richers again pursuing Jones for traffic infractions in the McDonalds parking lot

before the collision with Lyons; were any officers supervising the pursuit as directed under the

policies; did Richers and Lynch operate their vehicles in accordance with the policies; did a convoy

of other officers join the pursuit in violation of policy; did Officer Richers and Lyons communicate

effectively and accurately as the pursuit transpired; and was it reasonable to consider Jones’ scrape

with Officer Lyons’ van an aggravated assault to justify pursuit under the policies? These potential

violations are non-exhaustive.

As such, a reasonable jury could find the pursuit violated policy. The next question is

whether a custom of reckless pursuits or the Boroughs’ deliberate indifference to train officers was

the “moving force” behind these violations. While these claims are analytically distinct, the

evidence underlying them is largely the same.

ii. Collingdale and Darby’s Contentions

Plaintiffs argue the Borough Defendants had a custom of permitting high-speed pursuits

over minor traffic infractions and failed to train officers in the initiation, supervision, and

continuance of pursuits. Pls.’ Resp. to Darby at 21–27. They claim the lack of pursuit training,

extensive history of dangerous pursuits over traffic infractions, and total failure to investigate or

discipline officers as a result of any prior pursuits demonstrate both a pattern of conduct the

Boroughs ignored and a widespread practice of reckless pursuits. Id. Defendants counter that

Plaintiffs fail to show either an unconstitutional custom or deficient training. Darby Summ. J. at

11–15; Collingdale Summ. J. at 14–15. Regarding custom, Defendants contend the existence of

prior pursuits does not prove they were improper. Darby Summ. J. at 11–15; Collingdale Summ.

J. at 14–15. Without a formal investigative or statistical analysis, they argue, the prior incidents

are not germane. Darby Summ. J. at 11–15; Collingdale Summ. J. at 13–15. Moving to the failure

to train, Defendants argue academy training in pursuit driving, the Boroughs’ directions that

officers read their pursuit policies, and the relevant officers’ (Lyons, Lynch, and Richers)

awareness of the policies shows that, whatever the deficiencies of this pursuit, lack of training was

not the causal link for the accident. Darby Summ. J. at 11–15; Collingdale Summ. J. at 15–19.

iii. Collingdale and Darby’s Pursuit Custom and Failure to Train Officers

Plaintiffs’ have raised genuine disputes over whether the Boroughs’ defective customs and

training were the moving force of constitutional violations. First, Pazen’s Report analyzed every

prior pursuit in the years leading up to this incident. For Collingdale, he opines that over 80% of

their 26 pursuits since 2015 began over summary or minor offenses in derogation of policy. Pazen

Report III.C.i. And prior deprivations of rights were not merely hypothetically. Nine pursuits

ended with property damage or human harm. Id. Moreover, many of the same officers, including

Officer Richers, had participated in the improper pursuits. Id. For Darby, Pazen writes that 12 of

their pursuits between 2013 and 2020 violated policy, again with many resulting in property

damage or personal injury. Id. at III.C.ii. His analysis of prior incidents is precisely the sort of

evidence required to prove a pattern of deficiency. See Harris v. City of Philadelphia, 171 F. Supp.

3d 395, 400–03 (E.D. Pa. 2016) (Kelly, J.) (finding Department of Justice Investigation into

municipal defendant’s deficient use of force policy allowed plausible failure to train and custom

liability claims).22

Second, the Boroughs’ purported inaction in response to every one of these incidents

reinforces an inference of approval. The Boroughs did not produce records or testimony of any

22 To the extent the Plaintiff’s expert reports are short of the Department of Justice’s standards, Defendants cannot

profit from their own failure to record or investigate past incidents as advantage in this lawsuit. Plaintiffs, utilizing

deposition and subpoena gathered sufficient evidence to render triable facts to a jury.

discipline, investigation, or re-training as a result of any of their collectively 60-odd pursuits. Pazen

Report III.B.ii.3; Darby Dep. 233:1–234:20; Felker Dep. 53:21–58:01, 61:18–67:18. Rather they

made two respective pursuit policy changes in that time. Collingdale implemented a new written

pursuit policy in October, 2019 because “it was time.” Felker Dep. 98:17–25. Meanwhile, around

the time Larry Krasner was elected Philadelphia District Attorney, Darby ordered its officers

terminate pursuits at the City limit because “Krasner was just locking up cops left and right.”

Smythe Dep. 51:13–53:22, Defs.’ Ex. G, ECF 68–5. And the Collingdale supervisor responsible

for overseeing this pursuit, when asked what factors he has considered when deciding to engage

in pursuits, responded that his “primary concern” in past pursuits was not officer or suspect safety

but damaging “brand new” police vehicles. Finley Dep. 73:01–75:21, Pls.’ Ex. M, ECF 82. The

Boroughs’ failure to follow Pennsylvania’s mandatory reporting of pursuits—a requirement

enacted to promote state-wide accountability—allows a further inference of indifference to their

potential danger.23

Finally, viewing the record in the light most favorable to Plaintiffs, the Boroughs failed to

provide any training on when or how to conduct vehicle pursuits beyond, at most, providing

officers with the written documents. Collingdale and Darby’s pursuit policy “training” consisted

of handing officers hundreds of pages of police procedure, which included the pursuit policy, and

telling them to read it. Felker Dep. 70:12–71:10, 129:23–132:10; Darby Dep. 44:16–46:22. While

officers received classroom training on how to operate a vehicle during a pursuit at police academy,

no evidence suggests they received any corresponding training for when to initiate a pursuit.

Justice O’Connor’s oft-repeated scenario reflects this exact point. In Harris, she explained that a

23 The Court takes judicial notice of Pennsylvania’s annually published pursuit data. From 2015 to 2020, between

29.91% and 34.76% of reported pursuits resulted in a vehicle crash. From 2015 to 2020, between 10.86% and 13.49%

of reported pursuits caused injuries. PA. POLICE PURSUIT REPORTING UNIT, POLICE PURSUIT REPORTING SYSTEM:

FIVE-YEAR TREND ANALYSIS (last accessed Jan. 31, 2024), https://perma.cc/BB5M-KBHN.

municipality, “arm[ing] its officers with firearms,” would be liable if they did not also train them

on when to deploy force. 489 U.S. at 390 n.10. Considering the uncontested danger high-speed

pursuits pose to the public, no matter how deftly an officer operates his vehicle, inadequate training

on when to pursue predictably leads to injury.24 See Cooper v. Merrill, 736 F. Supp. 552, 568 (D.

Del. 1990) (finding “the need for training regarding police pursuits” as “patently obviously” and,

therefore, analogous to Harris’s hypothetical).

iv. Discussion of Precedent and Conclusion re: Monell Claims

In accumulation, this evidence is enough to survive summary judgment. In their motions,

Defendants point to unpublished in-circuit district court decisions that found providing officers

with a written pursuit policy satisfied a municipality’s training obligations. See McNeil v. Borough

of Folcroft, 2014 WL 5880125 at *4 (E.D. Pa. Nov. 13, 2014) (“A practice of providing new

officers with a proper written pursuit policy and instructing them to read it, coupled with a reliance

on the recent training those officers had previously received on this subject, cannot be

characterized as a ‘failure to train.’”) (Bartle, J.); Jewell v. Ridley Twp., 2011 WL 5524260, at *9

(E.D. Pa. Nov. 10, 2011) (Surrick, J.), aff’d, 497 F. App’x 182 (3d Cir. 2012) (granting summary

judgment to municipal defendant when officers had completed academy training and were

generally familiar with the written pursuit policy). But critically absent in both Jewell and McNeil

24 Defendant Collingdale’s contention that the Borough police chief is not a final policymaker to impute municipal

liability is unavailing in this case. First, municipal police chiefs are plausibly final policymakers when they promulgate

training materials and retain authority to evaluate and control officers’ conducts. Andrews v. City of Philadelphia, 895

F.2d 1469, 1481 (3d Cir. 1990) separate holding superseded in part by statute Pub. L. No. 102–166, 105 Stat. 1072;

McTernan v. City of York, PA, 564 F.3d 636, 658–59 (3d Cir. 2009) (identifying police chief as policymaker). But

more importantly, in custom and failure to train cases, in contrast to official policy claims, Pennsylvania police chiefs

are routinely the relevant policymakers because of their determinative role in running the department. See, e.g, Beck

v. City of Pittsburgh, 89 F.3d 966, 973 (3d Cir. 1996) (Pittsburgh police chief knew or should have known that officers

used excessive force as custom); Watson v. Abington Twp., 478 F.3d 144, 156 (3d Cir. 2007) (Police chief was

“undisputed” decisionmaker to impute municipal liability when police department had custom of racial bias in

enforcement).

is a history of past violations. Jewell, 2011 WL 5524260 at *9 (noting that plaintiff did not allege

a history of accidents resulting from pursuits).

Indeed, the presence of past violations, or lack thereof, is frequently the fulcrum point for

custom and failure to train cases. Compare Fulkerson v. City of Lancaster, 801 F. Supp. 1476,

1485 (E.D. Pa. 1992) (Van Antwerpen, J.), aff’d, 993 F.2d 876 (3d Cir. 1993) (finding municipality

could not have been on notice to better train officers when there was no evidence of previous

injuries or collisions in high speed chases); Carroll v. Borough of State College, 854 F. Supp. 1184,

1198 (M.D. Pa. 1994) (granting summary judgment for municipality when only prior pursuit

accident was caused by a different municipality); Burga v. City of Plainfield, 2020 WL 2513507

at *13 (D.N.J. May 15, 2020) (“plaintiffs present no evidence of a pattern of constitutional

violations during police pursuits”) with Gilyard v. Stylios, 1998 WL 966010 at *8 (E.D. Pa. Dec.

23, 1998) (Shapiro, J.) (denying summary judgment against city because plaintiffs presented

evidence of “a large number of preventable accidents occurring in the course of similar” pursuits

coupled with a failure to discipline officers); Igwe, 2017 WL 395745 at *8 (allowing case to

proceed because plausible that officers routinely violated pursuit policy).

Altogether, a reasonable jury could find the past pursuits, and the Boroughs’ lack of

remedial actions in their wake, established a custom of authorizing pursuits with a deliberate

indifference to the dangers they presented. Similarly, the history of pursuits and resulting damage

may have put the Boroughs on notice that training was woefully inadequate to protect the publics’

constitutional rights, such that failure to act evinced a deliberate indifference to them. Based on

this same history of potential violations, their predictable recurrence, and the Boroughs’ refusal to

take any remediation, a jury could conclude the custom and failure to train caused and were the

moving forces behind the officers’ policy violations, and, consequently, Plaintiffs’ injuries.

IV. STATE CLAIMS

In addition to the constitutional claims, Plaintiffs brought state law claims against

Defendants related to the officers’ alleged negligent or reckless driving during the pursuit, the

emotional damage wrought on Plaintiff Dellavecchia when she witnessed her sister’s death, and

municipal Defendants’ respondeat superior liability under state law. Because this Court chooses

to bifurcate the trial on the state law claims, it will defer ruling on summary judgment, with one

exception. Defendant Lyons is entitled to summary judgement, because, as discussed supra, his

actions are too remote to satisfy causation. See Fulkerson, 801 F. Supp. at 1485.

A. Bifurcation of Trials

Under Rule 42(b), “[f]or convenience, to avoid prejudice, or to expedite and economize,

the court” may separately try claims and defendants. Bifurcation “is entrusted with wide

discretion” to the trial judge. Reed v. Philadelphia, Bethlehem & New England R.R. Co., 939 F.2d

128, 133 (3d Cir. 1991).

Bifurcation is appropriate here for two reasons. First, the legal standards and nucleus of

facts between the state law and Monell claims are quite distinct. The facts supporting a Monell

claim “involve the City’s policy or lack of policy” regarding pursuits, which is a “much broader

issue than the Officers’ conduct toward the plaintiff” in this discrete event. Wilson v. City of

Chicago, 900 F. Supp. 1015, 1022 (N.D. Ill. 1995) (Gettlemen, J.). Much of the Monell

presentation at trial, including the Boroughs’ knowledge of past pursuits, the propriety of past

pursuits, the number of past pursuits, the conduct during past pursuits, and the response to past

pursuits, “which make up the core of the Monell claim and defense, are unnecessary” to the state

law claims, which boil down to whether the officers drove negligently or recklessly during the

pursuit.25 Id. at 1023. See also Jones v. Haga, 2006 WL 2038006 at *6 (D. Col. Jul. 17, 2006)

(Figa, J.) (holding that municipal liability claims against police department did not share common

nucleus of facts with state law allegations of officer misconduct); Westmark Dev. Corp. v. City of

Burien, 2011 WL 252917, at *5 (W.D. Wash. Jan. 26, 2011) (Martinez, J.) (“[t]here can be no

common nucleus of operative facts between the state law claims that were pursued and the § 1983

claim against the City . . . because an essential requirement for the § 1983 claim was missing from

the state court claims”).

Second, novel and complex questions of state law caution this Court. Defendants argue

that officer Defendants are entitled to official immunity for the state claims. 42 Pa. Cons. Stat.

Ann. § 8550. However, this Court is unaware of any case law analyzing the official immunity

statute’s applicability to officers injuring a bystander while pursuing a fleeing suspect. See, e.g.

Alex G. ex el. Stephen G. v. Bd. of Trustees of Davis Joint Unified Sch. Dist., 332 F. Supp. 2d

1315, 1320 (E.D. Cal. 2004) (Levi, J.) (declining to hear state law case when official immunity

issues raised “both novel and complex issues of state law); UMC Dev., LLC v. D.C., 401 F. Supp.

3d 140, 158 (D.D.C. 2019) (same). In the same vein, the scope of immunity over police officers

“implicate[s] distinctly local policy interests,” that may be best left for a state court to decide.

UMC Dev., LLC v. D.C., 982 F. Supp. 2d 13, 21 (D.D.C. 2013) (Kessler, J.). Because the

evidentiary and legal dissimilarities are likely to prejudice Defendants, and a state court may be

better suited to deciding the immunity claims, bifurcation is appropriate.26

25 Plaintiffs’ state law claims against the Boroughs are largely asserting a theory of vicarious liability for the officer

Defendants’ actions.

26 This Court may revisit its decision to exercise supplemental jurisdiction over the Plaintiffs’ state law claims pending

the Monell trial.

V. CONCLUSION

For the foregoing reasons, Defendants’ motions for summary judgment is GRANTED in

part and DENIED in part. An appropriate ORDER will follow.