Osagie v. Borough of State College

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SYLVESTER OSAGIE, No. 4:20-CV-02024

Representative of the Estate of Osaze

Osagie, Decedent, (Chief Judge Brann)

Plaintiff,

v.

BOROUGH OF STATE COLLEGE, et

al.,

Defendants.

MEMORANDUM OPINION

NOVEMBER 27, 2023

This case presents a tragic, and unfortunately familiar scenario in which an

individual suffering from a mental health crisis was killed by the police. In March

2019, Sylvester Osagie (“Osagie”) was worried that his son, Osaze Osagie

(“Osaze”), was off his medication and could present a danger to himself or others as

he had many times in the past. As Osagie had on prior such occasions, he enlisted

the help of the State College Police Department (“SCPD”), this time asking them to

find his son, take him into custody, and transport him to a medical facility so that he

could receive the medical care he certainly needed. Unfortunately, SCPD officers

never got that chance. When they found Osaze at his home, he charged at the officers

with a knife in an apparent attempt to commit “suicide by cop.” After an attempt to

subdue Osaze with non-lethal force failed, SCPD Officer M. Jordan Pieniazek, with

nowhere to retreat and fearing for his life, shot and killed Osaze.

Sylvester Osagie now brings this suit, on behalf of his son, alleging that the

officers who responded to Osaze’s apartment failed to take proper precautions prior

to confronting Osaze. Though the Court empathizes with the loss suffered by the

Osagie family, that does not entitle them to relief. The State College Police

Department is, as the name suggests, a department of police officers, not mental

health professionals. They were police officers when Sylvester Osagie requested that

they involuntarily commit his son to receive medical treatment, and they were police

officers when his son charged at them with a knife. The Court, therefore, declines

Mr. Osagie’s invitation to hold the officers liable for failing to be something they

are not, and a death they did not cause.

I. BACKGROUND

A. Procedural History

On November 2, 2020, Plaintiff Sylvester Osagie initiated this suit on behalf

of his son, Osaze, against the Borough of State College and ten John Doe Defendant

State College Police Department Officers filing an eight-count complaint.1 Osagie

amended his complaint on January 25, 2021, adding three new claims, bringing the

total to eleven, and identifying the previously unknown Defendant SCPD Officers

1 Compl., Doc. 1.

as M. Jordan Pieniazek, Christopher Hill, Keith Robb, and Christian Fishel.2 Osagie

subsequently agreed to dismiss Counts 4-7.3 The remaining claims are:

 Count 1 – Excessive force in violation of the Fourth and Fourteenth

Amendments against Pieniazek, Hill, and Robb (the “Officers”);

 Count 2 – State created danger under 42 U.S.C. § 1983 against State

College and Fishel;

 Count 3 – Failure to supervise under 42 U.S.C. § 1983 against State

College and Fishel;

 Counts 8 and 9 – Assault and battery against the Officers;4

 Counts 10 and 11 – Damages under the Pennsylvania wrongful death

and survival statutes against all Defendants.

Defendants moved, through two separate motions, for summary judgment as

to the remaining claims.5 In this memorandum opinion, the Court addresses

Defendants’ Motion for Summary Judgment on Counts 1 and 8-11.6

B. Standard of Review

Under Federal Rule of Civil Procedure 56(a), summary judgment is

appropriate where “the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to a judgment as a matter of law.” As

expressed by the Supreme Court of the United States in Celotex Corp. v. Catrett,

summary judgment is required where a party “fails to make a showing sufficient to

2 Am. Compl., Doc. 15.

3 Stipulated Dismissal, Doc. 85; Ord. Granting Dismissal, Doc. 100.

4 Osagie also withdrew his assault and battery claims against State College and Fishel in his

brief opposing summary judgment. Opp., Doc. 111 at 10 n.8.

5 Mot. Summ J. Counts 1 and 8-11, Doc. 93; Mot. Summ. J. Counts 2-3, Doc. 89.

6 The parties’ briefing on Defendants’ Motion for Summary Judgment on Counts 2-3 contains

extensive discussion of an SCPD officer’s own mental health struggles and treatments. As a

result, that briefing has been filed under seal, and the Court will address the parties’ arguments

as to that Motion in a separate sealed opinion accordingly.

establish the existence of an element essential to that party’s case” on an issue that

the “party will bear the burden of proof at trial.”7 Material facts are those “that could

alter the outcome” of the litigation, “and disputes are ‘genuine’ if evidence exists

from which a rational person could conclude that the position of the person with the

burden of proof on the disputed issue is correct.”8

The party requesting summary judgment bears the initial burden of supporting

its motion with evidence from the record.9 When the movant properly supports its

motion, the nonmoving party must then show the need for a trial by setting forth

“genuine factual issues that properly can be resolved by only a finder of fact because

they may reasonably be resolved in favor of either party.”10 The United States Court

of Appeals for the Third Circuit explains that the nonmoving party will not withstand

summary judgment if all it has are “assertions, conclusory allegations, or mere

suspicions.”11 Instead, it must “identify those facts of record which would contradict

the facts identified by the movant.”12

7 477 U.S. 317, 322 (1986).

8 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010) (quoting Clark v. Modern

Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993)).

9 Celotex, 477 U.S. at 323.

10 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

11 Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010).

12 Port Auth. Of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002) (quoting

Childers v. Joseph, 842 F.2d 689, 694-95 (3d Cir. 1988)).

In assessing “whether there is evidence upon which a jury can properly

proceed to find a verdict for the [nonmoving] party,”13 the Court “must view the

facts and evidence presented on the motion in the light most favorable to the

nonmoving party.”14 Moreover, “[i]f a party fails to properly support an assertion of

fact or fails to properly address another party’s assertion of fact as required by Rule

56(c),” the Court may “consider the fact undisputed for purposes of the motion.”15

Finally, although “the court need consider only the cited materials, . . . it may

consider other materials in the record.”16

Local Rule 56.1 requires all motions for summary judgment to be

“accompanied by a separate, short, and concise statement of the material facts, in

numbered paragraphs, as to which the moving party contends there is no genuine

issue to be tried.” The party opposing summary judgment must then include with its

papers an answer to the movant’s statement of facts in which it identifies, in

corresponding numbered paragraphs, those material facts which the nonmovant

contends there is a genuine issue to be tried.17 “Statements of material facts in

support of, or in opposition to, a motion shall include references to the parts of the

13 Liberty Lobby, 477 U.S. at 252 (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S.

422, 448 (1871)).

14 Razak v. Uber Technologies, Inc., 951 F.3d 137, 144 (3d Cir. 2020).

15 Fed. R. Civ. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613-14 (3d

Cir. 2018).

16 Fed. R. Civ. P. 56(c)(3).

17 LR 56.1.

record that support the statements.”18 Material facts in the movant’s statement “will

be deemed to be admitted unless controverted by the statement required to be served

by the opposing party.”19

II. UNDISPUTED FACTS

A. Osaze’s Mental Health Struggles

In the years prior to the shooting, Osaze had struggled with his mental health;

he had been diagnosed with schizophrenia and Asperger’s syndrome and had been

hospitalized for psychiatric reasons at least six times.20 Though he functioned well

when taking his mental health medications, off his medication Osaze could

“present[] a danger to himself, his family, neighbors, and other members of the

community.”21 Such incidents include: allegedly setting a fire at his parents’ home;

committing an armed robbery in which he, “acting on a ‘commandment from God,’

brandished a knife when taking someone else’s basketball;” throwing a brick

through a window at his parents’ home; and other instances in which Osaze’s parents

“feared for their safety and for that of their other children.”22

18 Id.

19 Id.

20 Pl. Counterstatement Statement of Material Facts (“CSF”), Doc. 108, pp. 18-29 ¶ 9; Defs.

Resp. to Counterstatement of Facts (“RCSF”), Doc. 116 ¶ 9. Where a material fact in the

parties’ statements of facts is undisputed, the Court will cite them together and identify the

relevant paragraph in a single citation. For example, the format for this citation is CSF and

RCSF ¶ 9.

21 CSF and RCSF ¶ 11-12.

22 CSF and RCSF ¶ 12; Defs. Statement of Material Facts (“SMF”), Doc. 95, pp. 1-28 ¶ 4; Pl.

Resp. to Statement of Undisputed Material Facts (“RSMF”), Doc. 108, pp. 1-18 ¶ 4.

On such occasions, law enforcement would be called to respond.23 Following

the armed robbery, Osaze was arrested and eventually pleaded guilty to criminal

charges leading to a term of imprisonment.24 When Osaze threw a brick through his

parents’ window and was no longer welcome in the home, Sergeant Christopher Hill

used his personal credit card to pay for a hotel room so that Osaze would have

somewhere to stay for the night until a “302 warrant”—a warrant for involuntary

mental health evaluation and treatment—could be issued.25

B. Osaze’s Death

From December 2018 to March 2019, Osagie noticed a decline in his son’s

mental health.26 On March 19, 2019, Osagie received a distressing test message from

his son, Osaze, which read in part:

Tell him [mental health professional] I will not be able to attend any

more of our appointments ... although the police hid the secret reason,

I have run into trouble with them before for the very reason I am about

to run into trouble with them again in a little bit. The detective's hidden

reason for getting me in trouble in the past was because of my love for

God and my love for his creation...

God is dead in this country, and soon I hopefully will be dead also. My

fast - approaching deep sleep will result from a struggle between God

and evil ... and a battle between the citizens of the US and the American

government.

[I]f my mission is successful, if I die for my God today... Any poor soul

whose life I take today, if any poor soul at all, may God forgive his sins

23 SMF and RSMF ¶ 3.

24 SMF and RSMF ¶ 4.

25 SMF and RSMF ¶ 32; see also Application for Involuntary Emergency Examination and

Treatment (“302 Warrant Application”), SMF Ex. A, Doc. 95-1 at 4 (description of warrant).

26 CSF and RCSF ¶ 30.

if he has any. And I pray there is no friendly fire. Lets see how much

time I have left before finding out what life after death is really about.27

Alarmed by his son’s threat to “kill himself and hurt others,” Osagie requested

a 302 warrant for Osaze.28 In the warrant application, Osagie noted that Osaze had

been “acting erratically for about two weeks, the way he typically acts when he is

off his medication.”29 Osagie met with two SCPD officers, Officer John Tlumac and

Officer Kurt Stere, and “explained that Osaze had gone missing, had a history of

mental illness,” “had probably stopped taking his medication,” and “that ‘things get

bad’ when his son is off the medications.”30 Osagie’s request for a 302 warrant was

authorized, requiring law enforcement to take Osaze into custody and transport him

to Mount Nittany Medical Center for treatment.31

Tlumac briefed Lieutenant Todd Scholton, who supervised the March 19-20,

2019 night shift and Scholton subsequently briefed the day shift supervisor

Lieutenant Chad Hamilton.32 During the morning patrol briefing attended by Officer

M. Jordan Pieniazek and other patrol officers, Hamilton reviewed the 302 warrant

and the texts, advising the officers “that there is a threat here” and “he’s out there,

we’re going to find him, just be careful.”33

27 SMF and RSMF ¶ 1.

28 302 Warrant Application.

29 Id.

30 CSF and RCSF ¶ 32.

31 SMF and RSMF ¶ 50; 302 Warrant Application; see also 50 Pa. C.S. § 7302(a)(1).

32 CSF and RCSF ¶¶ 35-39.

33 CSF and RCSF ¶ 42.

Scholton also requested that the SCPD records department provide Lieutenant

Keith Robb with a “case jacket” containing Osagie’s prior history.34 Upon being

briefed of the situation on the morning of March 20, 2019, Robb “‘red flagged’

Osaze’s name because of his prior police contact history,” “believ[ing] that Osaze

was capable of harming himself and others.”35 Robb, based on his prior experience

with Osaze, reached the same conclusion as Osagie: “Osaze was likely off his

medications” and “[w]hen he’s off his meds, he’s a different person and he’s just

displayed to be a threat to the community.”36 Robb reached this conclusion despite

not having read the text messages attached to the 302 warrant which he later said

“read to him like a ‘Columbine doomsday manifesto.’”37

Efforts by SCPD to locate Osaze and take him into custody began on March

19, 2019 and continued into March 20.38 These efforts were unsuccessful and

ultimately it was one of Osaze’s mental health counselors who spotted Osaze near a

grocery store close to his home.39 At around 1:48 p.m., the counselor alerted the

Centre County crisis agency Can Help that he saw Osaze, and Can Help in turn

reported this to SCPD.40 Officer Pieniazek was assigned to the call and responded,

34 CSF and RCSF ¶ 41; see also Scholton Dep., CSF Ex. 8, Doc. 115-8, at 85:1-86:2.

35 CSF and RCSF ¶ 44.

36 CSF and RCSF ¶ 45.

37 CSF and RCSF ¶ 46.

38 SMF and RSMF ¶¶ 7-8.

39 SMF and RSMF ¶¶ 9.

40 Id.; CSF and RCSF ¶ 52.

heading to Osaze’s apartment.41 Sergeant Hill, Pieniazek’s direct supervisor, and

Lieutenant Robb also responded to the call.42

At Osagie’s apartment, the Officers briefly met outside of the building where

Robb confirmed that the 302 warrant was still valid.43 They did not make a “special

plan” regarding how they would confront Osaze44 or request the assistance of Centre

County Mental Health Services (“CIT” or “MHID”).45 Familiar with the general

layout of the building from previous calls, the Officers were aware that it presented

tactical challenges, including limiting their ability to retreat in the event of a

confrontation.46 Believing that the only entrance to Osaze’s basement apartment was

from within the building, the Officers did not investigate whether there was an

alternate means of entrance and proceeded to head down two small flights of stairs

to Osaze’s basement apartment to see if he had returned home.47 Due to the tight

quarters at the bottom of steps, Hill remained on “the next to last step of the

stairwell” and Robb was behind him at or near the top of the steps.48 Pieniazek,

operating as the lead officer on the scene by virtue of having accepted the call from

dispatch, knocked on Osaze’s door and covered the peephole.49

41 SMF and RSMF ¶¶ 11-14; CSF and RCSF ¶ 53.

42 SMF and RSMF ¶ 16; CSF and RCSF ¶ 55.

43 SMF and RSMF ¶¶ 17-18.

44 CSF and RCSF ¶ 71.

45 CSF and RCSF ¶ 26.

46 CSF and RCSF ¶¶ 56-62.

47 SMF and RSMF ¶ 17.

48 CSF and RCSF ¶ 78.

49 SMF and RSMF ¶ 19; CSF and RCSF ¶ 77.

Upon answering the door, Osaze refused Pieniazek’s requests to speak with

the Officers either inside or outside of his apartment.50 Then, after Pieniazek asked

Osaze what he had in his right hand, Osaze took a step back, revealing a knife, and

said “kill me.”51 Pieniazek replied, “No, drop the knife,” at which point Robb said

“tase him.” Osaze briefly disappeared into the apartment and Pieniazek took a couple

steps back to create a “reactionary gap,” repeating his order to Osaze that he drop

the knife.52 Osaze then “came rushing out past the door” and Hill attempted to

subdue him with his taser.53 Unfortunately, Hill’s taser had no effect on Osaze’s

advance and Pieniazek fired his gun, killing Osaze.54

III. LAW

“Police officers, embodying the authority of the state, are liable under § 1983

when they violate someone’s constitutional rights, unless they are protected by

qualified immunity.”55 “To prevail on a Fourth Amendment excessive-force claim,

a plaintiff must show that a seizure occurred and that it was unreasonable under the

circumstances.”56 As “the use of deadly force is a seizure subject to the

50 SMF and RSMF ¶ 20-21.

51 SMF and RSMF ¶ 22.

52 Id.

53 SMF and RSMF ¶¶ 23-25.

54 Id.

55 El v. City of Pittsburgh, 975 F.3d 327, 334 (3d Cir. 2020) (quoting Curley v. Klem, 499 F.3d

199, 206 (3d Cir. 2007)).

56 Id. at 366 (quoting Lamont v. New Jersey, 637 F.3d 177, 182-83 (3d Cir. 2011)).

reasonableness requirement of the Fourth Amendment,”57 “‘reasonableness’ [is] the

ultimate—and only—inquiry.”58

The United States Court of Appeals for the Third Circuit has identified a

number of factors courts consider in determining the reasonableness of the use of

force: “the severity of the crime at issue, whether the suspects pose an immediate

threat to the safety of the officers or others, . . . whether they are actively resisting

or attempting to evade arrest by flight,” “the physical injury to the plaintiff, the

possibility that the persons subject to the police action are themselves violent or

dangerous, the duration of the action, whether the action takes place in the context

of effecting an arrest, the possibility that the suspect may be armed, and the number

of persons with whom the polices officers must contend at one time.”59

This lengthy, non-exhaustive list of factors underscores the Third Circuit’s

admonition that the reasonableness inquiry is to be “assessed in light of the totality

of the circumstances.”60 This analysis is conducted “‘from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight,’

making ‘allowance for the fact that police officers are often forced to make split-

second judgments—in circumstances that are tense, uncertain, and rapidly

57 Tennessee v. Garner, 471 U.S. 1, 7 (1985).

58 Johnson v. City of Philadelphia, 837 F.3d 343, 349 (3d Cir. 2016).

59 Rush v. City of Philadelphia, 78 F.4th 610, 620 (3d Cir. 2023) (citing Graham, 490 U.S. 386,

396 (1989); El, 975 F.3d at 336; Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997)).

60 Johnson, 837 F.3d at 350 (citing Abraham v. Raso, 183 F.3d 279, 289 (3d Cir. 1999).

evolving—about the amount of force that is necessary in a particular situation.’”61

However, officers cannot escape liability where they “unreasonably created the

encounter that ostensibly permitted the use of deadly force.”62

In Johnson v. City of Philadelphia,63 the Third Circuit provided guidance for

courts conducting this analysis in cases of officers encountering mentally disabled

or disturbed persons, cautioning that there is no broad immunity from Fourth

Amendment liability “whenever a mentally disturbed person threatens an officer’s

physical safety.”64 “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.”65

“However, qualified immunity exonerates even unreasonable officer conduct

unless (1) the officer violated a constitutional right, and (2) the right was clearly

established, ‘such that ‘it would [have been] clear to a reasonable officer that his

61 Id. (quoting Graham, 490 U.S. at 396-97).

62 Estate of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir. 1993).

63 837 F.3d 343 (3d Cir. 2016).

64 Id. at 352-53.

65 Id. at 353.

conduct was unlawful.’’”66 The Court may conduct the qualified immunity inquiry

“in the order . . . most appropriate for the particular case.”67 As discussed below,

though the problem of police use of excessive force against the mentally ill may be

clearly established,68 the solution is not,69 which is sufficient for the Court to grant

the Officers’ Motion under the second prong.

Nevertheless, the Court is mindful that the “two-step [qualified immunity]

procedure promotes the development of constitutional precedent and is especially

valuable with respect to questions that do not frequently arise in cases in which a

qualified immunity defense is unavailable.”70 Though a district court’s role in the

development of such precedent is limited71—nothing this Court says will suffice to

resolve anything other than the dispute between these parties—conducting the full

two-step analysis here is not merely an “academic exercise.”72 Cases of excessive

66 Rush v City of Philadelphia, 78 F.4th 610, 619 (3d Cir. 2023) (quoting Lamont v. New Jersey,

637 F.3d 177, 182 (3d Cir. 2011); Saucier v. Katz, 533 U.S. 194, 201-02 (2001)).

67 Santini v. Fuentes, 795 F.3d 410, 418 (3d Cir. 2015) (citing Pearson v. Callahan, 555 U.S.

223, 236 (2009)).

68 See Karsyn Costello, Disability As "Abnormal": Court Sanctioned Violence Against

Individuals with Disabilities, 57 Harv. C.R.-C.L. L. Rev. 755, 773-74 (2022) (observing that

“thirty to fifty percent of all use of force incidents involve an individual with a disability”);

accord Johnson, 837 F.3d at 356 & n.7 (Roth, J., dissenting).

69 See San Francisco v. Sheehan, 575 U.S. 600, 616-17 (2015) (noting the “generality” of the

officers’ training for “dealing with the mentally ill” and the lack of consensus among courts

regarding how officers are required to handle such situations).

70 Pearson, 555 U.S. at 236.

71 See Jefferson v. Lias, 21 F.4th 74, 81 (3d Cir. 2021) (observing that, to determine whether a

right is “clearly established,” courts first turn to Supreme Court precedent and binding Circuit

precedent, then a consensus of cases among the Courts of Appeals, followed by district court

cases).

72 Pearson, 555 U.S. at 237.

force against the mentally ill arise with startling frequency, and this case does not

present questions “so fact dependent that the result will be confusion rather than

clarity.”73

IV. ANALYSIS

A. Excessive Force

“We begin,” as the Third Circuit did in Johnson, “with a proposition that can

scarcely be disputed:” once Osaze ran at the Officers with a knife, Pieniazek was

justified in using deadly force to defend himself and Hill.74 However, the “the basis

of [Osagie’s] claim [is] that the Officers’ actions prior to Osaze opening his door

created the danger that necessitated the use of deadly force.”75 Osagie argues that

“the officers’ actions left themselves ‘in a position where fatal force was the only

option they had when Osaze—a mentally ill individual who was off his medication

and had acted violently when off his medication in the past—did exactly what he

had threatened to do in the text messages his father had shared with the police and

which were attached to the 302 warrant.’”76

Defendants argue that Osagie’s argument is “really just a ‘second-guess’ or

‘bad tactics’ argument that has been rejected by the Supreme Court and the Third

73 Id. at 237 (quoting Scott v. Harris, 550 U.S. 372, 388 (2007) (Breyer, J., concurring)).

74 Id. at 350.

75 Opp. 8 n.4 (emphasis in original).

76 Id. 8 (quoting Expert Report of Jeffery J. Noble, CSF Ex. 7, Doc. 108-7 ¶ 38).

Circuit.”77 Relying on Johnson and the Supreme Court’s decision in County of Los

Angeles v. Mendez,78 Defendants insist that the Court may not “fault[] the Officers

for [their] tactics such as the manner in which they initiated the encounter.”79 Neither

Johnson or Mendez are to be read so broadly. In Johnson, the Third Circuit

emphasized that “[a] proper Fourth Amendment analysis requires us to assess not

only the reasonableness of [the officer’s] actions at the precise moment of the

shooting, but the ‘totality of circumstances’ leading up to the shooting.”80 In Mendez,

the Supreme Court instructed the lower court on remand to consider whether the

“bad tactics” of the officers caused the plaintiffs’ injury.81

Evaluating whether the Officers’ actions “unreasonably created the encounter

that ostensibly permitted the use of deadly force,”82 the Court is to examine the

impact of preceding events through the lens of “ordinary ideas of causation, not

doctrine about when the seizure occurred.”83 The task is to determine whether the

77 Reply, Doc. 118 at 9.

78 581 U.S. 420 (2017).

79 Id. 9-10.

80 837 F.3d at 350.

81 581 U.S. at 432. The plaintiffs in Mendez were shot by officers following an unconstitutional

(thus, tactically flawed) entry of their home. Id. at 424-25. The Ninth Circuit applied its

“provocation rule,” which, in cases of excessive force claims, “instruct[ed] courts to ask

whether the law enforcement officer violated the Fourth Amendment in some other way in the

course of events leading up to the seizure.” Id. at 427. Rejecting the provocation rule, the

Supreme Court emphasized that the inquiry is not whether a separate Fourth Amendment

violation preceded the use of force, rather whether the actions of the officers proximately

caused the injury. Id. at 432. Notably, on remand the Ninth Circuit held that the warrantless

entry of the home was the proximate cause of plaintiffs’ injuries. Mendez v. County of Los

Angeles, 897 F.3d 1067, 1076 (9th Cir. 2018).

82 Enyart, 5 F.3d at 234.

83 Abraham, 183 F.3d at 292.

alleged failures of the Officers in responding to Osaze’s apartment proximately

caused his shooting.84

Osagie makes clear that “[t]his litigation is not about the[] police officers who

received Sylvester’s request for a 302 warrant.”85 He suggests that the

“professionalism” of those officers “drew stark contrast with the Defendants who

served the warrant and failed [to] ascertain the critical facts chronicled by other

officers, including that this was a suicide by cop encounter.”86 Osagie asserts that

the responding officers unreasonably “did not: (1) review text messages; (2) read the

302 petition; (3) review Osaze’s history; (4) call a crisis center for on scene

assistance despite a SCPD policy that required them to do; (5) make any plan for

how they would de-escalate the situation if Osaze was not cooperative;” or (6)

“investigate [an alternate] means of approach” despite “kn[owing] that the tactical

realities left the officers with no choice but to use lethal force against Osaze if he

made good on his suicide by cop promise.”87

These purported failings on the part of the responding officers fall into two

categories: The first three reflect a failure of the Officers to educate themselves

regarding the risk Osaze posed to himself and the officers. The latter three suggest a

failure to respond to that threat adequately. The Court finds that a reasonable juror

84 Mendez, 581 U.S. at 432.

85 Opp. 1.

86 Id.

87 Id. at 7 (numbering added).

could conclude that Osaze intended to commit suicide by cop and that the Officers

should have responded to the scene accordingly.88 The inquiry then turns on whether

the Officers’ response was, in fact, reasonable.

1. Failure to Call a Crisis Center

Osagie argues that the failure to involve a crisis worker violated SCPD

policy.89 SCPD’s Mental Health/Intellectual Disability policy Section 2.7.8 A.1

provides that, “[w]hen an MH/ID 302 warrant is issued, an officer will be dispatched

to the scene of the incident to assist in serving the warrant or stabilizing the person

or situation until a crisis worker arrives on scene.”90 It also provides that, in cases

where “the person to be picked up may be a danger to himself or others[, t]his

individual may require immediate police action prior to the arrival of the crisis

worker with the warrant. It is expected members of [SCPD] will take whatever action

is necessary to keep the situation under control until the arrival of the crisis worker

and the warrant.”91 Further, Captain Chris Fishel testified that, while there are

instances where a crisis worker is unavailable, officers called to serve a 302 warrant

88 See Hamilton Dep., Counts 2-3 SMF Ex. N, Doc. 92-14 at 37:12-14 (“Q: When you read the

302 petition, was it evident to you that there was a danger? A: Yes. Q: A danger to himself?

A: Yes, and others. Q: And others. And did you view it as a potential suicide by cop kind of

danger? A: Potentially, yes.”); Robb Dep., SMF Ex. L, Doc. 95-12 at 151:3-4 (testifying that

Osaze’s text messages read like a “Columbine doomsday manifesto”); CSF and RCSF ¶ 48

(discussing Robb’s testimony that he assumed Osaze was suicidal, would try to hurt those

trying to help him, and that Robb “assumes every 302 is a suicide by cop situation”).

89 Opp. 7.

90 MHID Policy, CSF Ex. 4, Doc. 115-4.

91 Id. Section 2.7.8 A.2(b).

should contact and seek the assistance of a crisis worker.92 Defendants insist that

reaching out to the Centre County Crisis Intervention Team prior to “secur[ing] the

possibly violent”93 Osaze would have been fruitless because it was the practice of

the County CIT to “not become involved if there [are] threats of violence until the

scene is secure.”94

Even if the Court assumes there was a risk that Osaze would attempt suicide

by cop, this does not compel the conclusion that, at the time the Officers arrived, the

situation presented a danger greater than that of a “routine” 302 warrant.95 As

Pieniazek testified, Osaze purchasing groceries suggests that he was not “someone

who would appear to be planning to take their life.”96 Instead, viewing the evidence

in the light most favorable to Osagie, it was the Officers’ actions which “triggered”

Osaze’s response.97 In other words, a reasonable juror could conclude that the

situation was “stable,” and therefore SCPD policy required the Officers to seek the

assistance of a crisis worker prior to confronting Osaze.

92 See Fishel Dep., Counts 2-3 SMF Ex. B, Doc. 92-2 at 66:11-67-4.

93 Reply 6.

94 E.g., RCSF ¶ 26.

95 E.g., id. ¶ 50 (“Pieniazek would have classified this as a routine 302 warrant if he was aware

there were threats to harm others because a 302 warrant is specifically to harm yourself or

others.”); Hamilton Dep. 37:15-18 (Lieutenant Hamilton, the SCPD Critical Incident Training

liaison, testified that officers “involved in 302s . . . must assume that those contacts can be

dangerous,” and that there is a risk the individual or an officer could be injured or killed.);

Gardner Dep., Defs. Ex. E, Doc. 92-5, at 58:12-59:3 (Chief John Gardner testified that, though

it is “not uncommon” for individuals to threaten “committing suicide by cop” such comments

should be taken seriously.).

96 Pieniazek Dep., SMF Ex. J, Doc. 97-3 at 287:14-18.

97 Hamilton Dep. 111:13-17.

However, a violation of Department policy does not render the Officers’

actions unreasonable per se under the Fourth Amendment.98 “[I]n light of the facts

and circumstances confronting them,” the alleged policy violation is not so

objectively unreasonable as to constitute a Fourth Amendment violation.99 Gardner

testified that, despite the Department policy, the Centre County Mental Health

services has made it clear that it is not their responsibility or role to assist with the

service of 302 warrants:100

Q: Okay. And to your knowledge what steps, if any, were taken at the

State College Police Department to comply with [the MHID Policy]?

A: Okay. So the bottom line is what [MHID Policy] says there in

practicality might be what it says, but in reality, mental health has never

sent caseworkers out to serve 302 warrants with us. That simply has not

occurred.

What I think is being mistaken here or misconstrued is the fact years

ago a crisis worker would, you know, go out to assess someone who

was experiencing mental health issues -- they would ask us to go with

them to secure the scene, you know, and then once they felt safe at the

scene, they would release us. But never in my years of experience here

has anyone, any crisis worker ever helped us serve a 302 warrant. . . .

Q: Would you agree, Chief Gardner, that the policy as written

contemplates a crisis worker is supposed to be called when a 302

warrant is to be served on somebody?

98 See Johnson, 837 F.3d at 351 & n.47 (observing that, while “official police department policies

may be considered among other things in the reasonableness inquiry,” “police training and

procedures ‘do not, of course, establish the constitutional standard but may be relevant to the

Fourth Amendment analysis’”) (quoting Stamps v. Town of Framingham, 813 F.3d 27, 32 n.4

(1st Cir. 2016)).

99 Abraham, 183 F.3d at 289 (quoting Graham, 490 U.S. at 396).

100 Gardner Dep. 65:17-66:4.

A: It says that, but in practicality in reality it is not. They will not

respond. We have made requests in the past and they have made it

abundantly clear they are not going to respond to those calls.

Q: And right, I mean just looking at the next line down on the Policy

2.7.8.A.2, begins by saying, “A crisis worker will then meet us at the

scene with the 302 warrant,” right?

A: Right.

Q: And the “us” in that is the State College Police Department, right?

A: Right.

Q: When did you learn as chief that crisis workers were declining to

appear at the scene of the service of a 302 warrant . . . as a regular

matter?

A: It's been decades, is my understanding.

Q: And what steps have you taken in your role as a part of the command

staff and ultimately Chief, to address the fact that in your experience

crisis workers refused to appear when a 302 warrant was being served?

A: I've communicated that to the prior MHID director for the County,

which was Natalie Corman and was provided with the law and what the

law states is that a peace officer in Pennsylvania is the one who is tasked

with the service of mental health warrants, that it was not their

responsibility to do that. And she, you know, she very diplomatically

told us that it's not their responsibility to serve mental health warrants.

I know what this policy says, but I also know in practicality and reality

what we're left with. I cannot dictate to another agency what they should

or shouldn't do. I can only voice the concerns I have and I've done that

over the years.

Q: So is it fair to say, Chief that prior to the shooting of Mr. Osagie on

the 20th of March 2019, you were aware that crisis workers as a rule

were declining to appear at the service of 302 warrants, but you didn't

raise that with anybody at the mental health department?

A: Well, I don't think it's a question that they were declining it. It was

in their policy that it was not their responsibility. That it was the

responsibility of the police department and I know this issue has been

raised in the past by other chiefs, as well, and I may have had that

conversation prior to his shooting, too, because we deal with this so

often. But the one that sticks out in my mind was after the shooting, and

it may have been months after or whatever, that I personally called

Natalie Corman and voiced the concerns I had about the way, you

know, 302s were being served and that, you know, we were getting no

assistance from crisis workers. And she very diplomatically told me that

it was not their responsibility to serve those. In fact, if you'll allow me,

we met with the new -- the chief, when I say "we," the chiefs, the board

of chiefs, we meet monthly. We met Friday, just this past Friday [March

24, 2023], and we had the current director of MHID, Cathy Arbogast

there, and we discussed the issue of 302 commitments, and she again

reinforced the notion that it is the responsibility of the police to serve

those and they're not going to send caseworkers out to do that.101

Tracy Small, the Centre County Crisis Intervention Team Coordinator,102

confirmed that “Crisis does not respond when a 302 warrant is already issued;” they

“are no longer involved” “once that warrant is authorized and issued.”103

101 Id. 73:10-78:12.

102 Small Dep., SMF Ex. H, Doc. 95-8 at 10:7-14.

103 Id. 44:24-45:9. See also id. at 61:13-20 (MHID “would not accompany the police as it was

believed that an officer with training in crisis intervention being dispatched (which in Centre

County is the basic expectation) would be enough to deal with the situation.”).

Osagie notes that “Small also stated, however, that ‘a lot of times’ officers will call crisis

managers to help intervene with those types of calls, ‘especially for people, you know, they’ve

had calls on before. So it’s a team effort.” RSMF ¶ 49 (quoting Small Dep. 44:2-15). However,

“those types of calls” refers to a “crisis situation,” which Small distinguishes from an

“emergency situation,” or a situation in which a 302 warrant is already issued:

Q: When would it be appropriate [for officers to call a crisis manager or mental

health expert]?

A: If the person is having maybe some thoughts of suicide that they haven’t acted

on that. If there is not a 302 warrant involved, because Crisis does not respond

when a 302 warrant is already issued. So those are a couple examples.

Q: Why is it that crisis doesn’t respond if a 302 is already issued?

A: Because that is an emergency situation then, so we have crisis services and

emergency services, so once that warrant is authorized and issued, crisis is no

longer involved.

Small Dep. 44:22-45:9 (emphasis added).

No reasonable juror could conclude that it is was unreasonable for the

Officers, required by law to arrest Osaze pursuant to the 302 warrant, to forgo a futile

request for assistance.104 The Court recognizes that the “first line of defense against”

“the death of individuals with mental health problems at the hands of the police” “is

the establishment of police regulations to prevent interactions between police

officers and mentally disabled people from escalating into deadly confrontations.”105

However, in this case, it is not the Officers’ “disregard [of] such a regulation [which]

renders the regulation toothless;”106 but the policy of the Centre County CIT, an

entity which is not a party to this suit and over which the SCPD has no authority.107

2. Failure to Create a De-escalation Plan

The parties do not dispute that the Officers “made no ‘special plan’ regarding

how they would confront Osaze.”108 Osagie asserts that the Officers should have

established a plan “includ[ing] how to retreat if the situation becomes dangerous”

and “take into account the layout of the area, whether there was a means of egress,

and consider if there was a safer way of serving the warrant.”109 Further, Osagie

faults the Officers for failing to “plan as to what to do if Osaze was not cooperative,”

104 See Rush, 78 F. 4th at 620 (observing that courts should consider “whether the action takes

place in the context of effecting arrest” in determining reasonableness).

105 Johnson, 837 F.3d at 356 (Roth, J. dissenting).

106 Id.

107 Hamilton Dep. supra.

108 CSF and RCSF ¶ 71.

109 CSF ¶¶ 22-23.

because “circumstances seemed routine at the time.”110 Defendants insist that

Officers “used the standard 302 warrant procedures” which included “a plan for the

possibility that Osaze would run at them with a knife.”111

The Officers’ reliance on their training—the training that Centre County

MHID believed sufficient to prepare officers to serve 302 warrants112—is

presumptively reasonable.113 The Court is not moved by Osagie’s repeated

suggestion that it was “reckless [for the Officers to] treat[] this call as ‘routine’

despite the overwhelming evidence of danger.”114 Being a police officer “involve[s]

routine exposure to danger.”115 Every 302 warrant involves an individual who “poses

a clear and present danger of harm to others or himself or herself.”116 Treating the

situation as “routine” suggests that the Officers adhered to “[a] regularly followed

procedure [or] an established or prescribed way of” serving 302 warrants.117

110 Id. ¶¶ 72-73 (quotation and citations omitted).

111 RCSF ¶ 71.

112 Small Dep. 61:13-20

113 Cf. Johnson, 837 F.3d at 351 (observing that “official police department policies may be

considered . . . in the reasonableness inquiry”); id. at 356 (Roth, J., dissenting) (suggesting that

the failure to follow police regulations caused an avoidable violent confrontation).

114 Opp. 7; accord id. at 7 n.3; RSMF ¶ 43; CSF ¶¶ 49-50, 73.

115 See Pahler v. City of Wilkes-Barre, 207 F. Supp. 2d 341, 351 (M.D. Pa. 2001), aff’d 31 F.

App’x 69 (3d Cir. 2002) (quoting Hartman v. Bachert, 880 F. Supp. 342, 351 (E.D. Pa. 1995)

and dismissing claim brought by officer who was shot by another officer during a raid). In the

Fourth Amendment context, the Supreme Court has recognized “the dangers faced by police

officers [even] during the course of routine traffic stops.” Ickes v. Grassmeyer, 30 F. Supp. 3d

375, 390 (W.D. Pa. 2014) (citing Maryland v. Wilson, 519 U.S. 408, 412-15 (1997)).

116 302 Warrant Application at 906.

117 Routine, Oxford English Dictionary (Online Ed.) (last accessed Nov. 16, 2023).

Following an established procedure evinces that the Officers’ acted reasonably and

did not violate any clearly established law.

Most significantly, Osaze never gave the Officers the chance to de-escalate

the situation. When Osaze answered the door, Pieniazek, in a conversational tone,

merely asked Osaze if the Officers could speak with him.118 Osaze refused.119 No

reasonable juror could fault the Officers’ actions to this point. Then, Pieniazek

noticed that Osaze was holding a knife and, quite reasonably, asked him to drop it.120

Again, Osaze refused.121 Robb, contrary to Osagie’s claim that he was unable to

“participate in the interaction,”122 then told Hill to tase Osaze.123 Hill did so as Osaze

charged at him and Pieniazek, but the taser had no effect.124 Finally, left with no

other option, Pieniazek shot Osaze.125

The Supreme Court addressed a similar situation in City & County of San

Francisco v. Sheehan.126 In Sheehan, police officers were also confronted with a

mentally ill individual (in that case, a woman) wielding a knife.127 After the woman

expressed “her intent to resist arrest and to use the knife,” one of the officers

118 SMF and RSMF ¶¶ 20-21, 30.

119 SMF and RSMF ¶ 21.

120 SMF and RSMF ¶ 22.

121 Id.

122 Opp. 8.

123 SMF and RSMF ¶ 22.

124 SMF and RSMF ¶ 24.

125 SMF and RSMF ¶¶ 25-26.

126 575 U.S. 600 (2015).

127 Id. at 605.

attempted to subdue her with pepper spray.128 When that failed, the officers shot

her.129 The Supreme Court held that the officers’ “use of potentially deadly force

was justified” after they “tried to subdue [the woman] with pepper spray, but [she]

kept coming at the officers until she was only a few feet away from a cornered

officer.”130

Osagie contends that Sheehan is “easily distinguishable” because “[t]here was

no allegation that the officers did not adequately prepare for the encounter, and, in

fact, they had made a plan to pepper spray the woman in the face as they opened the

door and avoid the use of lethal force (the pepper spray just wasn’t effective).”131 On

the contrary, the circumstances in Sheehan are not just “remotely analogous,” they

are virtually identical.132 The Officers here were faced with a mentally ill Osaze who

threatened them with a knife and, once he tried to follow through on that threat, shot

him only after an attempt to subdue him with non-lethal force had no effect. The

crux of Osagie’s complaint is not that the Officers acted unreasonably, but that they

acted reasonably without having talked about it first.

Osagie’s argument that the Officers “tragically chose to approach Osaze in a

tight hallway giving them nowhere to retreat” fares no better.133 Osagie’s expert,

128 Id.

129 Id. at 606.

130 Id. at 612-13.

131 Opp. 8 n.5

132 Contra id.

133 Opp. 7 (quotation and citation to the record omitted).

Jeffrey J. Noble, a former Deputy Chief of Police with the Irvine Police Department

in California, opines:

The fact that an immediate response was not required allowed the

officers the opportunity to look for additional doors to the apartment

and to locate the basement window that may have allowed the officers

a view inside the apartment. An officer could have gone to the

apartment manager’s office to determine if there were other entrances

to the apartment, especially after seeing the tactical disadvantage that

the landing presented. Had they made some efforts, it is likely that they

would have found the exterior door that offered a significant tactical

advantage over the front door landing.134

Defendants unsurprisingly dispute Noble’s conclusions and offer their own

opposing expert report.135 However, they do not argue that his report falls below the

Daubert standard for admissibility.136 Ordinarily, conflicting expert reports are

sufficient to create a genuine issue of fact and preclude summary judgment.137

Further, the Court agrees with Noble that an immediate response was not required,

providing the Officers to investigate another means of approach. The Court also

rejects Defendants’ argument that it was reasonable not to investigate other means

of approach because “99.9% of the apartments in State College have one door.”138

That it may have been unlikely that Osaze’s apartment had a rear door does not

excuse the Officers from looking for it.

134 Noble Expert Report ¶ 47(a).

135 RCSF ¶¶ 82-84.

136 Id. Referring to Noble as a “purported expert” is insufficient to raise such an objection.

137 In re Sorin 3T Heater-Cooler Sys. Prod. Liab. Litig., 2021 WL 8016522, at *3 (M.D. Pa. July

19, 2021) (collecting cases).

138 RCSF ¶ 24.

However, Osagie “cannot avoid summary judgment by simply producing an

expert's report that an officer's conduct leading up to a deadly confrontation was

imprudent, inappropriate, or even reckless”139 Any failure by the Officers to look for

another means of entry was harmless because Osagie has not shown that any other

entrance would have provided the Officers with the ability to retreat.140 Osagie and

Noble suggest that the rear door “offered a significant tactical advantage over the

front door landing.”141 Though the Court is generally loath to reject the conclusions

of a qualified expert at summary judgment, this “version of events is so utterly

discredited by the record that no reasonable jury could . . . believe[ it].”142 The rear

door to Osagie’s apartment is located at the landing of a staircase which provides

barely enough room to turn around, let alone take “a couple steps back to create more

of a reactionary gap.”143 Osagie’s position is that, instead of “approach[ing] Osaze

in a tight hallway giving them nowhere to retreat,”144 the Officers should have

approached him at the landing of a staircase which gave them even less room to

retreat. No reasonable juror could accept that argument.145

139 See Sheehan, 575 U.S. at 616 (holding that an opposing expert’s report is insufficient to survive

summary judgment where a “reasonable officer could have believed his conduct was justified”)

(quotations and citations omitted).

140 See Mendez, 581 U.S. at 432 (holding that recovery is only permitted where a plaintiff’s

injuries are proximately caused by the police’s error).

141 Noble Report, supra.

142 Scott, 550 U.S. at 380.

143 RCSF Ex. A, Doc. 116-1 (pictures of rear door); SMF and RSMF ¶ 22.

144 Opp. 7 (record quotation and citation omitted).

145 Osagie offers that the rear door opening “directly into Osaze’s kitchen and a hallway which

connected a separate door to the hallway in front of Osaze’s apartment door” made approaching

3. Unreasonable Means of Approach

Osagie argues that Pieniazek acted unreasonably when he “covered Osaze’s

peephole to surprise him when he opened the door despite his compromised mental

state.”146 Defendants clarify that Pieniazek “covered the peephole because they

wanted Osaze to answer the door; they did not want Osaze to know it was police

officers or how many there were to further exacerbate the situation.”147 Pieniazek

also testified that he “covers the peephole on a door all the time to prevent a hostage

situation or barricaded situation, to include a noise complaint, because if they see

police, they will not answer the door.”148

As a general matter, when officers undertake a dangerous assignment, it may

well be appropriate for officers to use surprise to secure the premises.149 However,

where an officer chooses to employ the element of surprise, they risk creating a

from that door more advantageous. Id. There is no discussion of what area of the apartment

that Osagie’s front door opened into, or why it put the Officers at a tactical disadvantage. To

the extent that Osagie suggests that the window in the rear door would have prevented the

Officers from concealing their identity by covering the peephole, the Court addresses that issue

separately below.

The Court also notes that, to the extent Osagie faults Robb for remaining at the top of the

staircase, an approach at the rear door would not have allowed for better positioning.

146 Id. at 8.

147 RCSF ¶ 77 (citing Pieniazek Dep. 117:8-118:3).

148 Id. (citing Pieniazek Dep. 117:8-118:3).

149 See Muehler v. Mena, 544 U.S. 93, 108 (2005) (Stevens, J., concurring) (observing that

employing “overwhelming force and surprise” may be appropriate when undertaking “a

dangerous assignment to execute a warrant to search a property that is presumably occupied

by violence-prone gang members”). While Osaze did not pose the same sort of danger as the

situation in Muehler, the Officers did not use the same degree of force or surprise.

dangerous situation.150 Among those risks is that they will confront an armed

occupant.151 Pieniazek suggests that the risk was justified because it would prevent

a situation where Osaze barricaded himself in the apartment, perhaps with a hostage.

However, Pieniazek admitted that he was not aware Osaze had a roommate and had

no other reason to suspect that there would be a potential for a hostage situation.152

The Court also rejects Defendants’ proffered justification that they did not

want Osaze to know that they were police officers. It is well established that, as a

general matter, “police officers entering a dwelling must knock on the door and

announce their identity before attempting forcible entry.”153 Though the Officers

here did knock and did not enter Osaze’s apartment, this rule informs the

reasonableness inquiry. Courts have found that officers may dispense with

identifying themselves when (1) the occupant was aware of the officers’ identity, or

(2) announcement may lead to the occupant’s escape or (3) put the officers in peril.154

Pieniazek concedes that he did not want Osaze to know who they were. There is no

evidence that they were concerned Osaze would escape; on the contrary, the Officers

150 See Cass v. City of Abilene, 814 F.3d 721, 731 (5th Cir. 2016) (“We agree that by choosing to

conduct the raid with surprise and with guns drawn, APD created a dangerous situation that

led to [the decedent’s] death.”). Though the officer who shot the decedent in Cass was not

liable, the Fifth Circuit has rejected the “totality of the circumstances” test employed by the

Third Circuit. Id. at 731-32.

151 Mendez, 897 F.3d at 1081.

152 CSF and RCSF ¶ 70.

153 Walker v. City of Wilmington, 360 F. App’x 305, 313 (3d Cir. 2010) (quoting Richards v.

Wisconsin, 520 U.S. 385, 387 (1997)).

154 Id. (citing Richards, 520 U.S. at 394; Kornegay v. Cottingham, 120 F.3d 392, 397 (3d Cir.

1997)). A fourth factor, potential destruction of evidence, is plainly inapplicable here.

were unaware that there was another exit to the apartment. Though the parties agree

that Osaze posed a risk to others, Defendants do not argue that the Officers would

have been in greater danger if Osaze knew who was at the door.

Further, the record belies the suggestion that there was any need for the

Officers to conceal their identity. As Defendants note, “[d]uring past incidents Osaze

[was] generally cooperative and complied with police commands no matter what

emotional state he was in.”155 Not only have Defendants failed to demonstrate that a

mere desire for an occupant to answer the door justifies officers concealing their

identity, but they have also failed to show it was reasonable to assume Osaze himself

was unlikely to answer the door.

Relatedly, it is far from obvious that there would have been any harm in Osaze

not answering the door. If Osaze had attempted to barricade himself in the home, the

Officers would have then been on notice that this situation was different than prior

interactions between SCPD and Osaze. The Officers could have easily remained

outside of Osaze’s apartment and attempted to open a line of communication with

him.156 If that had failed, the Officers may have been justified in forcibly entering

Osaze’s home to execute the 302 warrant.157

155 RCSF ¶ 14.

156 See Noble Expert Report ¶ 53 (suggesting that the Officers “could have conducted a ‘surround

and callout,’ a common tactic by which the Officers communicate with an individual or from

the outside using a bullhorn or PA device to try to talk Mr. Osaze out of his apartment).

157 Young v. Scott Township, 469 F. Supp. 3d 298, 309 (M.D. Pa. 2020).

To be sure, the Court recognizes that alternative means of approach may have

presented their own complications. Noble’s proffered alternative of opening a line

of communication with Osaze from outside of the apartment assumes that this was

possible.158 Osaze’s phone, aside from a brief moment earlier in the day, had been

turned off and the Court is skeptical that a bullhorn or PA system is a particularly

effective way to communicate with the occupant of a basement apartment. A forcible

entry of a home creates its own risks. The Court takes no position as to the

reasonableness of any of the suggested means of approach other than to conclude

that, on the record before it, the Court cannot answer those questions on a motion

for summary judgment.

4. Totality of the Circumstances

Having considered each of the alleged failings separately, the Court now

analyzes them together.159 Ordinarily, courts should defer to the judgment of police

officers who must confront an individual, such as Osaze, who is potentially armed

and dangerous.160 However, the Officers’ actions must withstand a higher level of

scrutiny as Osaze had not actually committed a crime and they outnumbered him

158 See Noble Expert Report supra n.156.

159 See United States v. Green, 897 F.3d 173, 183 (3d Cir. 2018) (observing that a

“divide-and-conquer analysis” is inconsistent with a “totality of the circumstances approach”)

(citing District of Columbia v. Wesby, 583 U.S. 48, 62 (2018)).

160 Rush, 78 F.3d at 620 (identifying “the possibility that the persons subject to the police action

are themselves violent or dangerous” and “the possibility that the suspect may be armed” as

factors for courts to consider in evaluating an excessive force claim”).

three-to-one.161 Further, because the relevant conduct is the Officers’ actions prior

to Osaze opening the door, a reasonable juror could conclude that Osaze was not

“actively resisting or attempting to evade arrest,” and did not “pose an immediate

threat to the safety of the officers or others.”162 Finally, to the extent that the Officers’

actions caused Osaze’s death, that alone warrants a greater level of scrutiny.163

“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.”164 Here, there was no reason to await backup because there were already

three officers on the scene.165 Even if the Court assumes that “backup” could refer

to a member of a Crisis Intervention Team, that backup was never going to arrive

due to Centre County CIT’s policy that they had no role in serving 302 warrants.

Regarding whether the Officers should have retreated, the parties agree that

there was nowhere to retreat in the hallway outside of Osaze’s apartment.166

161 Id. (identifying as factors “the severity of the crime at issue” and “the number of persons with

whom the police officers must contend at one time”).

162 Id. (identifying both as factors). The Court notes that Osaze may have presented a threat to his

roommate. However, neither party suggests that this was the case. To the contrary, Pieniazek

was unaware that Osaze had a roommate, CSF and RCSF ¶ 70, and the Court must consider

the Officers’ actions from the perspective of a reasonable officer on the scene.

163 Rush, 78 F.4th at 620 (identifying as a factor “the physical injury to the plaintiff”) (citing El,

975 F.3d at 336).

164 Johnson, 837 F.3d at 353.

165 Cf. id. (discussing when it is reasonable for a single officer to approach a mentally disturbed

individual or await backup).

166 E.g., CSF and RCSF ¶ 59.

However, a reasonable juror could find that the tactical challenges presented by the

layout of the apartment complex combined with the Officers’ decision to obfuscate

their identity when they knocked on the door unreasonably increased the risk that

Officers would have to employ lethal force because they had nowhere to retreat. Put

differently, had the Officers not concealed their identity when Osaze knocked on the

door, it may have decreased the risk that Osaze answers the door with a weapon, if

he answers at all,167 obviating the need to retreat.168

B. Qualified Immunity

Though the “fact-intensive nature of the reasonableness inquiry means it

should often be resolved by a jury,”169 “[i]f the law did not put the officer on notice

that his conduct would be clearly unlawful, summary judgment based on qualified

immunity is appropriate.”170 Defendants are entitled to summary judgment on

qualified immunity grounds unless they violated right which “was clearly

established at the time of [their] actions.”171 To determine whether a right is clearly

established, the Court engages in the legal fiction that police officers, armed with a

subscription to the Federal Reporter, have fair warning that their conduct was illegal

167 See supra (noting that Osaze did not pose an immediate threat from inside his apartment).

168 Robb testified that if the Officers had to “fight” Osaze, he was confident that the three of them

could have subdued Osaze. RCSF ¶ 63. That Osaze possessed a weapon changed this calculus.

See also supra (Officers’ actions are subject to greater scrutiny as they outnumbered Osaze).

169 Berry v. City of Philadelphia, 188 F. Supp. 3d 464, 471 (E.D. Pa. 2016).

170 Saucier v. Katz, 533 U.S. 194, 202 (2001).

171 L.R., 836 F.3d at 247.

when it has previously been found unconstitutional by the Supreme Court, or “‘a

robust consensus of cases of persuasive authority’ in the Courts of Appeals.”172 As

the events here occurred on March 20, 2019, the Court looks to whether the right

was clearly established as of that date.173

The Court agrees with Osagie that, as with the reasonableness inquiry, the

qualified immunity analysis must consider the totality of the circumstances and is

not “confined to the seconds before the shooting.”174 Arguing that Defendants are

not entitled to qualified immunity, Osagie directs the Court to Eastern District of

Pennsylvania Judge Edward G. Smith’s opinion from earlier this year in Ardo v.

Pagan.175 Though Judge Smith’s opinion was issued after Osaze was killed, the

events of that suit occurred in 2017 so, to the extent that Ardo is factually analogous,

a finding that a right was clearly established in that case would be instructive here.

As in this case, the officers in Ardo were aware that they were approaching an

individual, confined to his property (sitting in his car and blocked in by the

responding officers’ cruisers), who was “suffering a mental health crisis and had

expressed suicidal threats.”176 It is there, however, where the similarities end. In

Ardo, the officers were warned the individual had an “improvised explosive device

172 Id. at 247-48 (quoting Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164, 169

(3d Cir. 2016); Taylor v. Barkes, 575 U.S. 826 (2015)).

173 Bryan v. United States, 913 F.3d 356, 363 (3d Cir. 2019).

174 Opp. 9.

175 652 F. Supp. 3d 545 (E.D. Pa. 2023).

176 Id. at 558.

strapped to his neck and that he would light it if he saw any police officers.”177

Nevertheless, the officers “immediately drew their weapons upon exiting their patrol

cars” and shouted competing demands of the individual.178 The court noted that, “the

Troopers had successfully blocked Mr. Ardo’s vehicle before they got out of their

respective patrol cars” and, “until the Troopers began approaching Mr. Ardo’s

vehicle, Mr. Ardo presented a threat to no one other than himself.”179 The court

found that it was the officers’ decision to approach Ardo which created the danger

to their own lives if Ardo were to attempt to light the explosive device, as he did.180

Holding that the officers were not protected by qualified immunity, Judge

Smith relied heavily on the Tenth Circuit’s decision in Allen v. Muskogee,181 noting

that it had been “cited and acknowledged in numerous qualified immunity decisions

outside the Tenth Circuit between 1997 and 2017.”182 The Allen court held that “an

officer violates the Fourth Amendment when his or her reckless or deliberate

conduct results in the need for lethal force or when the officers rely on lethal force

unreasonably as a first resort in confronting an irrational suspect who is armed with

177 Id.

178 Id. at 559.

179 Id. at 560.

180 Id.

181 119 F.3d 837 (10th Cir. 1997).

182 Ardo, 652 F. Supp. 3d at 562 (collecting cases).

only a weapon of short range lethality and who has been confined on his own

property.”183

Though Allen may have been instructive in Ardo, it is less so here. In

Tahlequah v. Bond,184 the Supreme Court reversed a denial of qualified immunity

based on Allen. There, officers approached an intoxicated individual, engaged him

in conversation and followed the man to his workbench where the man picked up a

hammer.185 After the man raised the hammer, the officers, roughly six feet away,

drew their guns, ultimately shooting and killing the individual as he “took a stance

as if he was about to throw the hammer or charge at the officers.”186 The Tenth

Circuit found that a reasonable juror could conclude the officers’ approach of the

individual and their “subsequent ‘cornering’ of him in the back of the garage

recklessly created the situation that led to the fatal shooting, such that their ultimate

use of deadly force was unconstitutional.”187

The Supreme Court found that “[n]ot one of the decisions relied upon by the

Court of Appeals”—including Allen —“comes close to establishing that the officers’

conduct was unlawful.”188 Notably, the Supreme Court found that the officers there,

183 Estate of Ceballos v. Husk, 919 F.3d 1204, 1219 (10th Cir. 2019) (citing Allen, 119, F.3d 837).

184 595 U.S. 9 (2021).

185 Id. at 10-11.

186 Id. at 11.

187 Id. at 12. The Court notes that, while the Supreme Court did not disturb the Tenth Circuit’s

ruling that the underlying conduct was unconstitutional, Osaze’s death preceded the decisions

from both Courts.

188 Id. at 13.

as here, attempted to engage in conversation, and did not yell at the decedent until

he wielded a weapon.189 Further, while “reckless preseizure conduct can render a

later use of force excessive,”190 “that formulation of the rule is much too general to

bear on whether the officers’ particular conduct here violated the Fourth

Amendment.”191 “‘Such specificity is ‘especially important in the Fourth

Amendment context,’ where it 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.’”192

Osagie also offers two other district court cases from within the Third Circuit

in support of his argument that the Officers are not entitled to qualified immunity:

Luna-Diaz v. City of Hackensack Police Dept.193 and Singletary v. City of

Philadelphia.194 Not only do both cases also postdate the underlying events of this

suit, again limiting their utility here, they are also insufficiently analogous as each

presented significant factual disputes regarding key issues, including whether the

officers were even in danger at the time they used lethal force.195

189 Id. at 13.

190 See id. at 13; Johnson, 837 F.3d at 351.

191 Bond, 595 U.S. at 13 (citing Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).

192 Id. at 12-13 (quoting Mullenix v. Luna, 557 U.S. 7, 12 (2015)).

193 2022 WL 18024213 (D.N.J. Dec. 30, 2022).

194 2021 WL 5235232 (E.D. Pa. Nov. 10, 2021).

195 Id. at *10-11; Luna-Diaz, 2022 WL 18024213, at *15. Further, the governmental interests in

this case are far greater than those in Luna-Diaz, where the officers were simply delivering a

message for the individual to call his probation officer.

Nor has the Court’s own review of the caselaw revealed any “robust

consensus” that would have given the Officers fair notice that their conduct was

constitutionally deficient. Given the uphill climb any plaintiff in Osagie’s position

faces, this is unsurprising. Several Courts of Appeals have rejected the “totality of

the circumstances” approach adopted by the Third Circuit.196 As a result, though

many courts may “express disapproval and disappointment” with law enforcement’s

response to mentally ill individuals, whether “law enforcement personnel [take]

unnecessary actions that heighten the risk of harm or death to mentally ill suspects”

is often not part of the analysis, constraining the formation of any robust

consensus.197 In the Circuits that do apply the “totality of the circumstances”

196 See Sok Kong v. Burnsville, 960 F.3d 985, 993-94 (8th Cir. 2020) (“Even if officers created

the need to use deadly force by trying to disarm a mentally ill person, the reasonableness of

force depends on the threat the person poses during the shooting.”) (quotation and citation

removed); Ray v. Roane, 948 F.3d 222, 225 (4th Cir. 2020) (“as we do in any case alleging

unreasonable use of force under the Fourth Amendment, we focus on the facts and

circumstances confronting the officer immediately prior to and at the very moment that force

was used, and disregard information not known to the officer at that time”) (quotation and

citation removed); Cass v. City of Abilene, 814 F.3d 721, 732 (5th Cir. 2016) (“any of the

officers’ actions leading up to the shooting are not relevant for the purposes of an excessive

force inquiry in this Circuit”) (citation removed); Felton v. City of Chicago, 827 F.3d 632, 635

(7th Cir. 2016) (“preseizure conduct is not subject to Fourth Amendment scrutiny”) (citation

removed); Terebesi v. Torreso, 764 F.3d 217, 234 n.16 (2d Cir. 2014) (“courts in this Circuit

and others have discarded evidence of prior negligence or procedural violations, focusing

instead on the split-second decision to employ deadly force”) (quotation and citation removed).

But cf. Young v. Providence, 404 F.3d 4, 22 n.13 (1st Cir. 2005) (observing that “events

immediately leading up to a shooting cannot be considered as part of the totality of the

circumstances along with the precise instant surrounding a shooting”) (emphasis added). But

see Allen, supra; Mendez, 897 F.3d 1067 (9th Cir. 2018) (considering events leading up to

shooting on remand).

197 See Rockwell v. Brown, 664 F.3d 985, 996-97 (5th Cir. 2011) (DeMoss, J., concurring)

(observing that law enforcement’s decision breach a suicidal individual’s door and shoot him

to death, while “not legally actionable, neither is it admirable”).

approach, courts “have refused to create two tracks of excessive force analysis, one

for the mentally ill and one for serious criminals.”198

More fundamentally, the state of the law regarding how law enforcement

should approach mentally ill individuals “remains relatively primitive.”199 Though

today’s police forces bear little resemblance to those of the 1800s, dealing with

serious criminals has long been among the core responsibilities delegated to law

enforcement. In contrast, the increasing reliance on police “to respond to crises

arising from a mental illness” is a relatively recent phenomenon.200 Thus, consensus

regarding how law enforcement should respond to such situations remains elusive.201

198 Bryan v. MacPherson, 630 F.3d 805, 829 (9th Cir. 2010); see also Rush, 78 F.4th at 620

(referring to the “crime at issue” and “suspects” in factors courts consider in Fourth

Amendment cases).

199 Id. at 996.

200 See Andrew C. Hanna, Municipal Liability and Police Training for Mental Illness: Causes of

Action and Feasible Solutions, 14 Ind. Health L. Rev. 221, 232-33 (2017) (discussing the

process and effect of deinstitutionalizing individuals with mental illness into the 1980s).

201 See Rafael A. Mangual, Police Use of Force and the Practical Limits of Popular Reform

Proposals: A Response to Rizer and Mooney, 21 Federalist Soc' Rev. 128, 132-33 (2020)

(observing that “[t]here is little evidence in the peer-reviewed literature that shows CIT’s

benefits on objective measures of arrests, officer injury, citizen injury, or use of force” and that

empirical research “conclusions concerning the effectiveness of de-escalation training . . .

were limited by the questionable quality of almost all evaluation research designs”) (internal

quotations and citations removed); Kathleen Giunta, Slaying the Serpents: Why Alternative

Intervention Is Necessary to Protect Those in Mental Health Crisis from the State-Created

Danger "Snake Pit", 30 J.L. & Pol'y 497, 517-18 (2022) (discussing “problems with the

Memphis CIT Model”); Small Dep. 18:12-14 (“Q: Would you consider the Memphis Model

to be the sort of the gold standard for CIT training? A: Yes.”).

One constant is that “[p]olice officers are not social workers [or]

psychiatrists.”202 The officers of the State College Police Department were not

mental health professionals when they successfully deescalated a situation where

Osaze, “‘acting on a commandment from God,’ brandished a knife when taking

someone else’s basketball.”203 Nor were they mental health professionals when Hill

used his personal credit card to pay for a hotel room for Osaze, not welcome in his

parents’ home after he threw a brick through a window, so that he would have

somewhere to stay until a 302 warrant could be issued.204 Nor were they mental

health professionals when called to respond to Osaze setting a fire in his parents’

home.205 Or when they responded on any of the other occasions where Osaze’s

parents feared for their own and their other children’s safety.206 Finally, the officers

of SCPD were not mental health professionals when Osagie, Osaze’s father and the

plaintiff in this suit, called upon them to arrest his son the day before Osaze’s

death.207

And yet, when the 302 warrant was issued, Pennsylvania law required SCPD

to take Osaze into custody so he could get treatment.208 Whereas Osaze’s family

202 ACLU-PA Statement on the Officer-Involved Shooting Death of Osaze Osagie, ACLU (Mar.

29, 2019), https://www.aclupa.org/en/press-releases/aclu-pa-statement-officer-involved-

shooting-death-osaze-osagie

203 RSMF ¶ 4 (citation to record omitted).

204 SMF and RSMF ¶ 32.

205 CSF and RCSF ¶ 12.

206 Id.

207 CSF ¶¶ 30-36.

208 50 Pa. C.S. § 7302(a)(1).

could evict him,209 mental health facilities could “transition” him out when he

overstayed his welcome,210 and Centre County MHID could refuse to assist when

they believed Osaze presented too great a danger, no such option was available to

SCPD. Though this does not give law enforcement carte blanche to flagrantly

violate the law, the alleged violations do not rise to that level. “[T]here is no

suggestion that the Officers intentionally provoked” Osaze and their “immunity does

not become less [because Osaze was] motivated to commit ‘suicide by cop.’”211

Determining the solution for how to best fill the “gaps” through which

individuals such as Osagie fall and law enforcement’s role in that solution is beyond

the purview of this Court.212 But so long as the responsibility for filling those gaps

falls upon police officers, the law affords them “the breathing room to make

reasonable but mistaken judgments about” how to do so.213 Accordingly, the Officers

are entitled to qualified immunity, and therefore, also summary judgment on

Osagie’s excessive force claims.

209 CSF ¶ 12.

210 See Iyun Osagie Dep., CSF Ex. 2, Doc. 108-2, at 13: 9-24, 57:9-58:15 (discussing that, despite

Ozase’s family’s desire for him to live at Strawberry Fields—a “halfway house” for those with

mental illness—“forever,” the facility has “to get people out because the waiting list is so

long”).

211 Lal v. California, 746 F.3d 1112, 1118 (9th Cir. 2014).

212 Iyun Depo. 59:7-14 (discussing the “gaps in the system” and that the government and social

programs “can only do so much”).

213 al-Kidd, 563 U.S. at 743.

C. Causation

Even if the Court assumes the Officers’ actions violated the Fourth

Amendment and that they were not entitled to qualified immunity for that violation,

Osagie’s excessive force claims would still fail because Osaze’s “violent,

precipitate, and illegal attack on [the Officers] severed any causal connection

between [the Officers’] initial actions and [Pieniazek’s] subsequent use of deadly

force.”214 In Johnson, the Third Circuit cautioned that the “question of proximate

causation in this case is made straightforward by the exceptional circumstances

presented—namely, a sudden, unexpected attack that instantly forced the officer into

a defensive fight for his life.”215 Though this case does lack some of the “extreme

facts” present in Johnson—i.e., Osaze was not walking through the street naked at 2

a.m. while in the throes of drug induced psychosis—the relevant circumstances are

sufficiently analogous.

“While there is no precise test for determining when a civilian's intervening

acts will constitute a superseding cause of his own injury,” the Third Circuit

identified as relevant considerations: “(1) whether the harm actually suffered differs

in kind from the harm that would ordinarily have resulted from the officer's initial

actions; (2) whether the civilian's intervening acts are a reasonably foreseeable

response to the officer's initial actions; (3) whether the civilian's intervening acts are

214 Johnson, 837 F.3d at 352.

215 Id.

themselves inherently wrongful or illegal; (4) and the culpability of the civilian's

intervening acts.”216

Though the Court has found that a reasonable juror could conclude that the

Officers employing the element of surprise created the risk that Osaze would answer

the door with a weapon, it does not follow that Osaze’s use of that weapon is the

kind of risk that would have ordinarily resulted from that choice.217 The Officers did

not break down the door with weapons drawn to find Osaze innocently holding a

firearm; they knocked on the door and attempted to engage him in conversation when

he answered.218

However, whether Osaze’s attack of the Officers was a reasonably foreseeable

response to their actions here is a closer question. As the Court has found that a

reasonable jury could conclude both that there was a risk Osaze would attempt

suicide by cop and that the Officers’ actions increased the likelihood he would

possess a weapon, it follows that jury could then conclude that Osaze’s intervening

act—attacking the Officers with that weapon—was a reasonably foreseeable

response.

216 Id. (numbering added).

217 See Austin v. Town of Blacksburg, 66 F. Supp. 2d 711, 774 (W.D. Va. 1998) (finding that

arrestee set “deadly chain of events in motion” as officers used deadly force “[o]nly when

[arrestee] seemingly threatened their lives”).

218 See Mendez, 897 F.3d at 1081 (contrasting case where officers’ unconstitutional entry of a

home resulted in shooting the occupant who possessed but did not threaten officers with a gun

with situation where occupant did threaten the officers, finding that the occupant’s actions is a

superseding cause in only the latter circumstance).

Nevertheless, that tenuous causal chain is easily ruptured by the inherent

wrongfulness and illegality of Osaze’s actions as well as his culpability for them.

Osaze’s mental illness does not make it acceptable to attack another person, police

officer or civilian, with a lethal weapon nor does it absolve him of responsibility for

his actions and “oblige [the Officers] to passively endure a life-threatening physical

assault, regardless of [Osaze’s] mental state.”219

Further, Osagie has not “produce[d] competent evidence that [Osaze’s]

illnesses . . . [made him] likely to respond to particular police actions in a particular

way.”220 On the contrary, Osagie asserts that, when off his medication, Osaze was

“less predictable, more volatile, and not stable.”221 In fact, to the extent that anybody

could have predicted how Osaze would have responded to the police, the record

suggests that it was likely Osaze would have peacefully complied with the Officers

as he had done numerous times in the past, including an occasion where he dropped

a knife he had been brandishing when ordered to do so.222

Because any allegedly unreasonable decisions made by the Officers did not

proximately cause Osaze’s death, the Officers are entitled to summary judgment.

219 Johnson, 837 F.3d at 353.

220 Id.

221 CSF and RCSF ¶ 11; see also Johnson, 837 F.3d at 353 (suggesting that an individual’s

unpredictability severs the chain of causation). Contra Luna-Diaz v. City of Hackensack Police

Dept., 2022 WL 18024213, at *16 (D.N.J. Dec. 30, 2022) (finding that a plaintiff had

introduced competent evidence that responding officers knew they were confronting an

individual with schizoaffective disorder and a history of violent confrontations with police).

222 CSF and RCSF ¶ 12.

D. Derivative Claims

As Osagie acknowledges, his state law claims for assault and battery

“receive[] the same analysis as [his] excessive force claim”223 Further, his wrongful

death and survival action claims are not new liability claims but are only claims for

certain categories of damages should Plaintiff’s underlying claims prevail.224 As the

Court has found that the Officers are entitled to summary judgment on Osagie’s

excessive force claims, they are also entitled to summary judgment on his assault

and battery claims, as well as his request for wrongful death and survival action

damages as to those claims.225

V. CONCLUSION

For the foregoing reasons, the Court will GRANT Defendants’ Motion for

Summary Judgment.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

223 Opp. 10 (quoting Singler v. Caterino, 2023 WL 4089104, at *7 (W.D. Pa. June 20, 2023)).

224 Id. 11.

225 Osagie’s wrongful death and survival action claims regarding his state create danger and failure

to supervise claims will be discussed in a separate memorandum opinion.