Opinion

SCARBOROUGH

Court
District Court, E.D. Pennsylvania
Filed
Apr 27, 2026
Cited by
0 cases
Authority
More cited than 41.3%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JENNIFER SCARBOROUGH, as

Executor of the Estate of Wyleek Tinsley,

Deceased,

CIVIL ACTION

NO. 25-2823

Plaintiff,

v.

TOWNSHIP OF ABINGTON, et al.,

Defendants.

Pappert, J. April 27, 2026

MEMORANDUM

On March 6, 2025, the Montgomery County 911 dispatcher received a call from

M.T., a young girl who said her mother’s boyfriend had a gun and shot at her mother

inside their apartment at the Rosemore Garden Apartments in Glenside. Abington

Township Police responded and the child, who had left the apartment under the guise

of taking her dog outside, told police the boyfriend, Wyleek Tinsley, fired a gun inside.

M.T. wasn’t sure if her mother, Rachel Thomas, was hurt.

A police response team led by Sergeant Daniel Burgmann and including Officer

Thomas Nyman formed in the stairwell leading to the apartment, where they heard

yelling and screaming from the girl’s mother. They were instructed to enter the

apartment if they heard another scream. They instead heard a gunshot. Fearing Ms.

Thomas was wounded or dead, they immediately entered the apartment and

encountered Mr. Tinsley emerging from a bedroom into the end of a dimly lit hallway,

turning to face them and raising his hands upward from near his waist. Believing he

had fired a gun just seconds before the encounter and he was now preparing to shoot

them, Sergeant Burgmann and Officer Nyman fatally shot Mr. Tinsley. He was

unarmed. Burgmann went into the bedroom to find Ms. Thomas crouched against the

wall on the other side of the bed, uninjured. When Burgmann asked Ms. Thomas

where the gun was, she responded “I don’t know, he had it.” Burgmann then saw the

gun on the bed.

Jennifer Scarborough, as executor of her son Wyleek Tinsley’s estate, alleges the

two officers used unconstitutionally excessive force and brings related federal and state

law claims against the officers, Abington Police Chief Patrick Molloy and the Township

of Abington. The defendants move for summary judgment. After thoroughly reviewing

the record to include audio of the 911 call and officer body worn camera footage,

considering the parties substantial briefing and holding oral argument, the Court

grants the motion. Under the totality of the circumstances, Sergeant Burgmann and

Officer Nyman reasonably believed Tinsley posed a significant threat of death or

serious physical injury when they used deadly force against him.

I

A

When M.T. called 911 to report the domestic dispute between Tinsley and her

mother, she told the dispatcher he “just shot a gun at her” mother. She didn’t know if

her mother was hurt. (911 Call, at 00:05–14, Defs.’ Statement of Material Facts Ex. A.,

Dkt. No. 61-2.) An argument is audible in the background of the 911 call recording.

See (id.) When the dispatcher asked if the dispute was verbal or physical, M.T.

explained she “heard a gunshot” and “a door got broken down.” (Id., at 1:15–22.) The

dispatcher asked if Tinsley “had a gun on him” and M.T. replied “yes, I believe so, I just

heard it, I am not in the room.” (Id., at 1:43–50.) The dispatcher prompted M.T. to

leave the apartment, if she could. M.T. then called out that she was taking the dog

outside and left to meet responding police officers. (Id., at 2:49–3:21.)

B

Officer Chris Petras and Burgmann and Nyman were among the officers who

responded to the reported domestic incident. (Burgmann, Nyman and Petras Body-

Worn Camera Footage, Defs.’ Statement of Material Facts Exs. B, C & D, Dkt Nos. 61-

3–5.) When Officer Nyman arrived, he got out of his car, beckoned M.T. to meet him

and asked her to confirm the location of the apartment she had just left, which she

quickly did. They moved away from the apartment building together and joined Officer

Petras. (Nyman BWC, at 2:34–3:12, Dkt. No. 61-4.) M.T. calmly told Officers Petras

and Nyman she “was on a virtual class and heard [her] mom and her boyfriend

fighting,” she heard a gunshot and “didn’t know what happened after that.” (Petras

BWC, at 3:06–20, Dkt. No. 61-5.) Officer Petras asked for M.T.’s mother’s phone

number and made the first of several unsuccessful attempts to contact the woman

inside the apartment. (Id., at 3:25–4:12.) M.T. then confirmed she heard one gunshot

and added that her mother was crying. (Id., at 4:15–26.) She gave a physical

description of Tinsley, confirmed again that she believed he fired a gun and explained

she was not sure if he fired it at her mother. (Id., at 4:26–5:03.) Officer Petras brought

M.T. to his squad car where he tried to gather more information on Tinsley and Rachel

Thomas. See (id., at 5:55–10:00.)

C

Meanwhile, a group of officers established a perimeter around the apartment.

(Nyman BWC, at 7:07.) An officer reported over the radio he saw blinds closing over a

window in the apartment. (Id.) Sergeant Burgmann and Officer Nyman convened

inside the apartment building stairwell as part of a “Quick Response Team.”

(Burgmann BWC, at 7:28); (Nyman BWC, at 8:10); (Nyman Dep. at 86:05–10, Pl.’s

Resp. to Defs.’ SOMF Ex. I, Dkt. No. 79-9.) While in the stairwell, Burgmann reported

over the radio that he heard a “female yelling inside the apartment,” (Burgmann BWC,

at 8:50–8:54), and roughly one minute later that he heard “screaming again from the

female,” (Id., at 9:44–59). An officer outside issued an order over the radio that officers

in the stairwell should enter the apartment if they heard more screaming. Burgmann

relayed that order to his fellow officers. He instructed that two officers with lethal

weapons would enter first (Burgmann and Nyman) followed by an officer with a “less

lethal” firearm. He told officers in the stairwell that if Tinsley did not comply or tried

to move, to “hit him.” (Id., at 11:56–12:26.)

Officers in the stairwell then heard a single gunshot from inside the apartment.

(Id., at 14:57); (Burgmann BWC, at 14:19.) Believing Ms. Thomas had just been shot

and was dead or critically injured, Sergeant Burgmann kicked the door three times

before it opened into the living room of the apartment. (Burgmann BWC, at 14:32);

(Burgmann Dep., at 98:1–7, 130:12–17.) Burgmann immediately shouted “police show

me your hands”—at this point, he couldn’t see anyone in the living room. (Burgmann

BWC, at 14:33–34.) He moved further into the room and saw a figure standing at the

threshold of a doorway on the left end of a dimly lit hallway. (Id., at 14:35.) Sergeant

Burgmann’s body worn camera shows Tinsley backed out of a room into the hallway,

his body perpendicular to it, with his left shoulder oriented toward Sergeant

Burgmann. (Id.) As Tinsley turned to face the approaching officers, he moved his

hands upward from near his waist. (Id., at 14:36.) Believing Tinsley was about to

shoot him or other officers, Sergeant Burgmann fired two shots from his service rifle at

Tinsley and then moved past the hallway entrance further into the living room to a

safer position. (Id.); (Burgmann Dep. at 97:15–19.) Officer Nyman, next to Burgmann,

fired his service handgun at Tinsley ten times. (Nyman BWC, at 14:35–37);

(Montgomery Cnty. Detective Bureau Suppl. Rep. at 5, Dkt. No. 79-5.) Approximately

eight seconds elapsed between the moment Burgmann opened the door to the

apartment and when he fired the first shot. (Burgmann BWC, at 14:32–40.)

Burgmann’s first shot and Nyman’s last were separated by approximately four seconds.

(Id., at 14:36–40.)

Immediately after discharging their firearms, Burgmann and Nyman moved

down the hallway. (Id., at 14:45–51); (Nyman Dep., at 147:11–15.) Sergeant

Burgmann entered the bedroom, confirmed Ms. Thomas was uninjured, saw a handgun

on the bed and ushered her out of the room and into the hallway. (Burgmann BWC, at

14:51–15:53.) While escorting her out of the apartment, Burgmann told Thomas not to

touch anything, but she bent down and picked up a cell phone from the floor of the

hallway where Tinsley had been shot. (Id.) Officer Nyman began to administer

medical aid to Tinsley before their supervisor, Lieutenant Kent, removed both

Burgmann and Nyman from the apartment. (Nyman BWC, at 16:56 & 17:31.) Tinsley

was shot five times—in the left side of his stomach, his right inner thigh, his left inner

calf, the left side of his head and the top of his head. (Dist. Att’y’s Apr. 14, 2025 Rep. at

3, Dkt. No. 64.)

D

Jennifer Scarborough sued the Township of Abington, Abington Police Chief

Patrick Molloy and “John Doe” police officers. (Compl., Dkt. No. 1.) She amended her

complaint to name Sergeant Burgmann and Officer Nyman as defendants. (Am.

Compl., Dkt. No. 51.) She asserts wrongful death and survival against all defendants,

(Counts I & II), Fourth Amendment excessive force, civil rights conspiracy and failure

to intervene claims against Sergeant Burgmann and Officer Nyman, (Counts III–V),

supervisory liability against Chief Molloy, (Count VI), failure to train against the

Township of Abington, (Count VII), state law assault, battery and gross negligence

against Sergeant Burgmann and Officer Nyman, (Counts VIII–X), and gross negligence

against Chief Molloy and the Township of Abington, Count XI).1 Defendants now move

for summary judgment on all claims against them. (Dkt. No. 60.)

II

Federal Rule of Civil Procedure 56 directs a court to grant summary judgment “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). This

language compels summary judgment “against a party who fails to make a showing

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

which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). A nonmoving party has not made that sort of showing if “the

1 Plaintiff’s counsel withdrew both gross negligence claims at oral argument. (Tr. of Oral Arg.,

at 103:16–21, Dkt. No. 86.)

record taken as a whole could not lead a rational trier of fact to find” in the party’s

favor. Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (citation omitted). The party must

identify “specific facts, as opposed to general allegations,” establishing each element.

10A Wright & Miller’s Federal Practice and Procedure § 2727.2 (4th ed. 2026).

Scarborough may not “rely merely upon bare assertions, conclusory allegations

or suspicions.” Fireman’s Ins. of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982).

She “cannot resist a properly supported motion for summary judgment merely by

restating the allegations of [her] complaint; rather, [s]he must point to concrete

evidence in the record that supports each and every essential element of [her] case.”

Jones v. Beard, 145 F. App’x 743, 745–46 (3d Cir. 2005) (per curiam) (citing Celotex, 477

U.S. at 322). “Legal memoranda and oral argument are not evidence and cannot by

themselves create a factual dispute sufficient to defeat a summary judgment motion.”

Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109–10 (3d Cir.

1985). Where there is no genuine issue of material fact, “concerns regarding the

credibility of witnesses cannot defeat summary judgment.” Schoonejongen v. Curtiss-

Wright Corp., 143 F.3d 120, 130 (3d Cir. 1998).

III

Section 1983 allows plaintiffs to sue state actors who violate their federal

constitutional rights. 42 U.S.C. § 1983. Qualified immunity “shields government

officials from civil damages liability unless the official violated a statutory or

constitutional right that was clearly established at the time of the challenged conduct.”

Reichle v. Howards, 566 U.S. 658, 664 (2012). The doctrine “gives ample room for

mistaken judgments” and protects “all but the plainly incompetent or those who

knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam)

(citation omitted). To determine whether an officer is entitled to qualified immunity,

the Court asks whether (1) “taken in the light most favorable to the party asserting the

injury” the facts “show the officer’s conduct violated a federal right” and (2) “the right

was clearly established at the time of the [alleged] violation.” Tolan v. Cotton, 572 U.S.

650, 655–56 (2014) (per curiam) (citation modified and omitted). The first question—

whether any officer violated a constitutional right—“overlaps with the merits of the

[excessive force] liability determination.” Est. of Paone v. Plymouth Township, No. 22-

2178, 2024 WL 5107592, at *4 (E.D. Pa. Dec. 13, 2024), aff’d, No. 25-1029, 2026 WL

661978 (3d Cir. Mar. 9, 2026).

A

The Fourth Amendment’s “objective reasonableness” standard governs excessive

force claims. Graham v. Connor, 490 U.S. 386, 388 (1989). Deadly force is not

excessive when an officer reasonably believes “the suspect poses a significant threat of

death or serious physical injury to the officer or others.” Tennessee v. Garner, 471 U.S.

1, 3 (1985). The inquiry requires “careful attention to the facts and circumstances of

each particular case, including the severity of the crime at issue” and “whether the

suspect poses an immediate threat to the safety of the officers or others.”2 Graham, 490

U.S. at 396. Reasonableness “must be judged from the perspective of a reasonable

2 “The following factors guide our analysis: (1) the severity of the crime at issue, (2) whether

the suspect poses an imminent threat to the safety of the police or others in the vicinity, . . . (3)

whether the suspect attempts to resist arrest or flee the scene[,] (4) the possibility that the persons

subject to the police action are themselves violent or dangerous, (5) the duration of the action, (6)

whether the action takes place in the context of effecting an arrest, (7) the possibility that the

suspect may be armed, and (8) the number of persons with whom the police officers must contend at

one time.” Saintil v. Borough of Carteret, No. 22-2898, 2024 WL 3565308, at *8 n.16 (3d Cir. July 29,

2024) (citations and internal quotation marks omitted) (cleaned up).

officer on the scene, rather than with the 20/20 vision of hindsight,” and must “embody

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

judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Id. at

396–97. Prior events may contextualize officers’ perception of otherwise ambiguous

conduct as threatening. Barnes v. Felix, 145 S. Ct. 1353, 1358 (2025). “[A]n officer who

uses deadly force in the mistaken belief that a suspect is armed” does not violate the

Constitution “so long as the mistake is reasonable and the circumstances otherwise

justify the use of such force.” Lamont v. New Jersey, 637 F.3d 177, 183 (3d Cir. 2011).

“Reasonableness under the Fourth Amendment should frequently remain a

question for the jury,” Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004) (citation omitted),

and courts should be “cautious” at summary judgment in deadly-force cases “to ensure

that the officer is not taking advantage of the fact that the witness most likely to

contradict [his] story—the person shot dead—is unable to testify,” Lamont, 637 F.3d at

181–82. “When opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court should

not adopt that version of the facts for purposes of ruling on a motion for summary

judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). When material facts are not in

dispute, and all inferences have been drawn in favor of the nonmoving party “to the

extent supportable by the record,” reasonableness “is a pure question of law.” Id. at 381

n. 8 (emphasis in original).

B

No reasonable jury could find Sergeant Burgmann and Officer Nyman used

excessive force against Tinsley. Officers responded to a 911 call where a witness, M.T.,

reported a domestic dispute. Officers’ response to a domestic dispute is a “specific

factor relevant to the totality of circumstances,” George v. Morris, 736 F.3d 829, 839

(9th Cir. 2013) (citation omitted), because “the volatility of situations involving

domestic violence” makes them “particularly dangerous” for officers, Mattos v. Agarano,

661 F. 3d 433, 450 (9th Cir. 2011) (en banc) (citation omitted); see also United States v.

Rahimi, 144 S. Ct. 1889, 1906 (2024) (Sotomayor, J., concurring) (“[O]ne study found

that domestic disputes were the most dangerous type of call for responding officers,

causing more officer deaths with a firearm than any other type of call.” (citation

omitted)).

The young girl explained several times—during her 911 call and on-site

interviews with officers—that she believed Tinsley fired a gun in the apartment. See

generally (911 Call; Petras BWC.) While waiting in the stairwell, officers heard a

female voice “screaming” and “yelling.” (Burgmann BWC, at 8:50–9:59.) Then they

heard a gunshot. 3 (Id., at 14:19.) At that moment any officer on the scene would have

reasonably believed—indeed would have known—someone inside the apartment was

armed and had just fired the weapon. “The possibility that a suspect may be armed,”

whether a suspect “poses an imminent threat to the safety of the police or others in the

vicinity” and “the possibility that the persons subject to the police action are themselves

violent or dangerous” are three of the several factors courts consider in determining

reasonableness of force. Saintil v. Borough of Carteret, No. 22-2898, 2024 WL 3565308,

3 Scarborough initially disputed whether officers heard a gunshot from inside the apartment.

(Pl.’s Resp. to SOMF ¶ 27) (“[A] loud noise was heard coming from the direction of the apartment.”).

At oral argument counsel granted it was “reasonable to believe that [the officers] heard a gunshot,”

(Tr. of Oral Argument at 32:6–8, Dkt. No. 86), a sensible concession since the body worn camera

footage permits no other inference, see Scott, 550 U.S. at 380.

at *8 n.16 (3d Cir. July 29, 2024). “The immediacy of the threat posed by the suspect is

the most important factor.” Gonzalez v. Anaheim, 747 F.3d 789, 793 (9th Cir. 2014) (en

banc). Any reasonable officer on the scene would believe Mr. Tinsley posed an

immediate, mortal threat to Ms. Thomas. This is why Sergeant Burgmann and Officer

Nyman, upon hearing the gunshot, quickly entered the apartment. (Burgmann Dep., at

98:1–7, 130:12–17 (“[O]ur goal was to get to the hostage that we believed was shot and

. . . either dead or critically injured.”)). After Sergeant Burgmann kicked the door open,

he yelled “police, show me your hands” and seconds later encountered Tinsley at the

end of a dimly lit hallway, turning toward him and moving his hands upward from near

his waist. (Burgmann BWC, at 14:33–36.) He fired twice and Officer Nyman, next to

him, fired ten times. (Burgmann Dep., at 97:15–19); (Montgomery Cnty. Detective

Bureau Suppl. Rep. at 5.)

Roughly twenty seconds passed between the gunshot the officers heard from the

stairwell and Officer Nyman’s last shot. (Burgmann BWC, at 14:19–40.) Although

“courts [] consider the speed with which officers resort to force” because officers are

expected to “use force with measured and ascending actions that correspond to a

suspect’s escalating verbal and physical resistance,” Solis v. Sarrett, 31 F.4th 975, 983

(5th Cir. 2022) (citation omitted), “law enforcement officers are not afforded the

opportunity of viewing in slow motion what appears to them to constitute

life-threatening action,” Dooly v. Tharp, 856 F.3d 1177, 1182–83 (8th Cir. 2017). When

Tinsley appeared at the end of the dimly lit hallway moving his hands upward from

near his waist after presumably firing a gun seconds earlier, the officers reasonably

believed they faced a deadly threat. “The Constitution simply does not require police to

gamble with their lives in the face of a serious threat of harm.” Elliott v. Leavitt, 99

F.3d 640, 641 (4th Cir. 1996). “Waiting in such circumstances could well prove fatal.

Police officers do not enter into a suicide pact when they take an oath to uphold the

Constitution.” Lamont, 637 F.3d at 183.

1

Scarborough responds by misrepresenting the record, claiming

Prior to entering the residence and shooting Mr. Tinsley, the Defendant

officers only knew that the juvenile standing outside of the building was

the 911 caller, there was a female inside the apartment, the basic

description of the male, there was a reported domestic incident, and that

the caller reported that a firearm was inside the apartment.

(Pl.’s Resp. in Opp’n at 16, Dkt. No. 77.) In addition to telling the 911 dispatcher

Tinsley “just shot a gun at” her mother, M.T. told officers he fired a gun in the

apartment, not that a “firearm was inside the apartment.” (Petras BWC, at 4:40.)

Scarborough argues the officers “had an abundance of information and time to evaluate

the perceived threat” and “operated under an abundance of assumptions of their own

creation,” presumably suggesting they could have taken a different approach to

deescalate the domestic dispute. (Pl.’s Resp. in Opp’n at 14–15.) Sergeant Burgmann

and Officer Nyman did not have an “abundance of information and time to evaluate the

perceived threat.” They knew they were entering an unsettled, dangerous situation

where their lives would be at risk. See Graham, 490 U.S. at 396–97. Second-guessing

the officers’ tactical approach relies upon the 20/20 hindsight courts cannot employ. Id.

Scarborough argues Lamont is distinguishable because there, “officers had an

abundance of time to give the suspect commands, analyze the situation, and evaluate

the suspect and his movements prior to making the determination that he presented

them with imminent threat to their safety requiring them to use deadly force.” (Pl.’s

Resp. in Opp’n at 14–15.) She argues the case is “neither instructive nor analogous to

the facts in this case.” (Id. at 14.) First of all, only the rare deadly force case is a

factual match to another, and “in the end we must still slosh our way through the

factbound morass of ‘reasonableness’” because “all that matters is whether [the

officers’] actions were reasonable.” Scott, 550 U.S. at 383. Furthermore, the facts and

principles explained in Lamont are indeed instructive here. In that case, officers

pursued a suspected car thief through “dark and dense” woods, catching up with him in

a thicket. Lamont, 637 F.3d at 180. The suspect was standing at an angle and

suddenly pulled his hand out of his waistband. Officers responded to his sudden

movement by shooting him. Id. The Third Circuit Court of Appeals found the District

Court correctly determined the officers’ initial use of force was permissible because they

“reasonably believed [the suspect] was drawing a gun, not complying with their

command that he show his hands” when he suddenly pulled his hand from his

waistband. Id. at 183–84, 188. Here, Sergeant Burgmann and Officer Nyman

reasonably believed Tinsley possessed a gun, had fired it moments before and was thus

likely to fire it at them before they encountered him in a dimly lit hallway raising his

hands upward from near his waist. Just as in Lamont, the officers here were not

“constitutionally required to wait until [they] set[] eyes upon a weapon before

employing deadly force to protect [themselves] against a . . . suspect who . . . moves as

though to draw a gun.” Id. at 183 (quoting Thompson v. Hubbard, 257 F.3d 896, 899

(8th Cir. 2001)).

Scarborough next claims defendants “avoid grappling with case law” where

courts denied summary judgment so a jury could conduct a “sound factual analysis.”

(Pl.’s Resp. in Opp’n at 15) (citing Ardo v. Pagan, 652 F. Supp. 3d 545 (E.D. Pa. 2023)).

She says “the court did not grant summary judgment” in Ardo “because of the

voluminous factual record that needed the consideration of a jury.” (Id.) That is not

true. The key issue in Ardo was the genuine dispute over whether officers “engaged in

unreasonable behavior” that may have “proximately caused” their use of deadly force.

Ardo, 652 F. Supp. 3d at 558. The officers there responded to a man in mental health

crisis who threatened to light an explosive attached to his neck if he saw any officers.

Id. at 552, 559. The court explained the officers “immediately drew their weapons”

“despite knowing that they were dealing with an emotionally disturbed person,” “did

not perform any de-escalation techniques,” “ordered [the decedent] to get out of his

vehicle” “despite knowing [he] likely had an explosive device,” and “neglected to take

cover behind their patrol cars, but instead approached the vehicle” while issuing

“competing demands” before shooting him. Id. at 558–59. This, the court concluded,

was enough for a jury to find the officers acted unreasonably in the minutes preceding

their use of force. Id. at 560. While Scarborough does not mention any of these facts or

the court’s reasoning in Ardo, to the extent she contends Sergeant Burgmann and

Officer Nyman acted unreasonably in the minutes before they heard a gunshot from

within the apartment, her claim finds no support in the record. Even if it did, the

gunshot officers heard from inside the apartment was the “superseding cause” of the

violence that followed. See Lamont, 637 F.3d at 185 (citing Bodine v. Warwick, 72 F.3d

393, 400 (3d Cir. 1995) (Alito, J.)).

2

Scarborough next argues “the extremely short timeframe between the officers’

command and the discharge of twelve rounds raises an additional substantial question

as to whether the officers ever conducted the objective threat assessment required by

the Fourth Amendment.” (Pl.’s Resp. in Opp’n at 17.) She misstates the law. The

Fourth Amendment does not require officers to conduct an “objective threat

assessment.” It prohibits deadly force unless an officer reasonably believes “the suspect

poses a significant threat of death or serious physical injury to the officer or others.”

Garner, 471 U.S. at 3. The gravamen of Scarborough’s argument is that officers should

have given Tinsley more time to comply with their command.

“While an officer is not obligated in all circumstances to give a warning before

using force, whether proper warnings were given is a pertinent consideration in

determining the reasonableness of the use of force.” 1 Martin A. Schwartz, Section

1983 Litigation: Claims and Defenses § 3.12[D] at 3-579 (4th ed. 2024); see also Garner,

471 U.S. at 11–12 (“[D]eadly force may be used to prevent escape, and if, where feasible,

some warning has been given.”) (emphasis added). Here, Sergeant Burgmann gave a

warning. His and Officer Nyman’s actions after the warning cannot be viewed in a

vacuum. Barnes, 145 S. Ct. at 1358. “The calculus of reasonableness must embody

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

judgments—in circumstances that are tense, uncertain, and rapidly evolving—about

the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at

396–97. “[I]f the officer believes the suspect has a gun, the calculation changes—even if

there was never, in fact, a gun.” Allen v. Hays, 65 F.4th 736, 744 (5th Cir. 2023).

Burgmann and Nyman heard a gunshot coming from inside the apartment

seconds before they encountered Tinsley at the end of the hallway. They already

believed Tinsley had a gun and had previously fired it, possibly harming or killing Ms.

Thomas. Based on these and other circumstances, they reasonably believed he would

shoot again. When Tinsley turned toward them and raised his hands upward from near

his waist, the officers reasonably believed he posed a threat of death or serious physical

injury. Indeed, “[a]ny reasonable officer in [their] position would have imminently

feared for [their] safety and the safety of others.” Anderson v. Russell, 247 F.3d 125,

131 (4th Cir. 2001); see also id. (“[A]n officer does not have to wait until a gun is pointed

at him before he is entitled to take action.”). The suddenness and short duration of the

encounter, in the context of what the officers knew before they entered the apartment,

makes their use of force more reasonable, not less.4 See McVae v. Perez, 120 F.4th 487,

4 At oral argument, the Court gave Scarborough permission to file a supplemental brief in

support of her conspiracy claim, which had by then morphed into something that was never pled.

(Tr. of Oral Arg., at 86:10–22.) She used most of that filing to instead reargue the excessive force

and qualified immunity issues, in which she came up with a new argument that “each trigger pull

constitutes a separate Fourth Amendment event that must be independently justified by objective

facts existing at that precise moment.” (Pl.’s Suppl. Reply at 2, Dkt. No. 88.) Scarborough waived

this argument given her failure to raise it in response to defendants’ motion for summary judgment.

See United States v. Cruz, 757 F.3d 372, 387–88 (3d Cir. 2014) (deeming waived “arguments that

were raised for the first time in a Reply brief.”).

In any event, the reasonableness inquiry is not limited to the “precise moment” of force,

instead the Court must consider the totality of the circumstances. Barnes, 145 S. Ct. at 1358.

Burgmann’s two shots and Nyman’s ten were fired in rapid succession over four seconds and

constitute a single use of force. Plumhoff v. Rickard, 572 U.S. 765, 777 (2014) (concluding fifteen

gunshots fired in rapid succession were a single use of force). “[I]f police officers are justified in

firing at a suspect in order to end a severe threat,” as they were in this case, “the officers need not

stop shooting until the threat has ended.” Id. Burgmann and Nyman had no chance to re-assess the

situation in the roughly four seconds between their first and last shot. See Jones v. Treubig, 963

F.3d 214, 236 (2d Cir. 2020) (emphasizing courts should not “isolate a particular act of force by an

officer if it was intertwined with other acts of force in rapid succession where there was no

reasonable opportunity to re-assess.”).

Importantly, there is no evidence that any of the shots Burgmann or Nyman fired struck

Tinsley in the back. Compare Lamont, 637 F.3d at 184 (finding continued use of force excessive

when “11 of the 18 bullets that struck [the suspect] hit him from behind” and officers “fired

continuously for ten seconds, shooting a total of 39 rounds”); and Duvall v. Hustler, 447 F. Supp. 3d

311, 326, 329 (E.D. Pa. 2020) (finding force excessive where nine officers fired 109 rounds, twelve of

493 (5th Cir. 2024) (“[D]issect[ing] events that occurred in less than 2.5 seconds is the

‘sort of Monday morning quarterbacking’ that our precedent proscribes.”). Officers

reasonably believed Tinsley was raising a gun, not complying with their command. See

Lamont, 637 F.3d at 184 (“Given the state of the record, we are compelled to hold that

the troopers reasonably believed that [the decedent] was drawing a gun, not complying

with their command that he show his hands.”).

3

Next, Scarborough claims Sergeant Burgmann contradicted his own account of

the incident, “making it impossible for a judge to rely” on his descriptions of Tinsley “as

an imminent threat to officer safety.” (Pl.’s Resp. in Opp’n at 18.) She contends

“Burgmann initially reported in his statements to Montgomery County Detectives that

Tinsley was advancing toward officers in a shooting stance while pointing or about to

point a firearm.” (Id.) (citing “Intv. of Def. Burgmann, 3/11/2025.”) First of all, there is

no “Interview of Defendant Burgmann” in the record—Scarborough apparently refers to

Montgomery County Detective Mark Minzola’s March 11 interview with Officer

Nyman. (Nyman Interview, Dkt. No. 79-8.) Detective Minzola asked Nyman “what

happened once you got inside the apartment?” (Id. at 9.) He responded

[W]e got inside the apartment. [W]e’re facing a . . . long hallway towards

the end of the house . . . it was dimly lit, there was nobody there and then

all of a sudden . . . a person popped out of the . . . very last room on the left

hand side towards us. [He] came in towards us . . . had his arms here and

then had them up . . . in front of him, like, he was in a . . . shooting type

stance, an offensive posture and started to move, like, towards us. [T]hat’s

when . . . I was obviously scared and deemed that to be a threat and I did

not wanna get shot so I . . . shot him.

which hit the suspect from behind and two struck the soles of the suspect’s feet, and where officers

“inexplicabl[y]” testified they saw and heard the suspect fire a gun when it was “undisputed that no

gun or other weapon was recovered near [the suspect].”).

(Id. at 10) (cleaned up). This response, Scarborough argues, conflicts with Burgmann’s

deposition testimony:

Q: All right. So at this point, there is no movement of his feet when he

has—when you are saying what you believed that his hands are coming

toward you, there is no movement of his feet at this point?

A: No, because at that time I shot him.

Q: Got you.

A: So by the time that he turned squared with me and pulled his hands up,

shots were fired and there was no longer, there was no more movement.

(Burgmann Dep. at 199:3–11.)5 Setting aside Scarborough’s misattribution of Officer

Nyman’s interview response to Sergeant Burgmann the Court discerns no meaningful

inconsistency between the two responses.

Scarborough next claims Sergeant Burgmann’s “initial, contemporaneous

statement—captured on body camera—does not mention any object [in Tinsley’s

hands].” (Pl.’s Suppl. Reply at 4, Dkt. No. 88.) After Burgmann and Nyman left the

apartment with Lieutenant Kent immediately after the shooting, Kent asked the two

officers “Did you see a weapon? What happened?” Sergeant Burgmann responded,

“[Tinsley] came out of the bedroom, started coming up with his hands like this

[motions], there was already a shot fired, [I] moved to cover, as we were coming and he

was going like this [motions] bringing his hands up in a firing position.” (Nyman BWC,

at 19:12–19:25.) Officer Nyman then turned off his body worn camera. (Id.); see also

5 In addition to mistakenly attributing Officer Nyman’s interview answer to Sergeant

Burgmann, plaintiff’s counsel mischaracterizes Burgmann’s testimony to read:

Q: At this point there is no movement of his feet when you say his hands were coming

toward you?

A: No, because I shot him.

Q: So there was no movement of his feet?

A: By the time he turned squared with me and pulled his hands up, shots were fired

and there was no longer any movement.

(Pl.’s Resp. in Opp’n at 18.) The differences are meaningful. Counsel omitted the qualifier “you

believed” from her question and omitted “at that time” from Burgmann’s response.

(Burgmann Dep. at 104:16–20) (“Q: would the [debriefing] be taped at all or captured on

any kind of body cam? A: No. I believe, per policy, we’re told you are supposed to turn

your body camera off for the public safety debriefing.”). There is no material

inconsistency in Sergeant Burgmann’s account of the incident—while it is true that he

did not mention an object in Tinsley’s hands, his response is consistent with a

reasonable belief that Tinsley was armed.

Even if Burgmann’s statements could be construed as inconsistent, his

“subjective beliefs and motivations are irrelevant[,]” “[w]hat is important is the amount

and quality of the information known to [him] at the time he fired the weapon.” Horton

v. Pobjecky, 883 F.3d 941, 950 (7th Cir. 2018) (citation omitted); see also Graham, 490

U.S. at 397 (“An officer’s evil intentions will not make a Fourth Amendment violation

out of an objectively reasonable use of force; nor will an officer’s good intentions make

an objectively unreasonable use of force constitutional.”). And regardless,

inconsistencies go to Sergeant Burgmann’s credibility and do not alone create genuine

issues of material fact. See Schoonejongen, 143 F.3d at 130 (“[C]oncerns regarding the

credibility of witnesses cannot defeat summary judgment” where there is no genuine

issue of material fact).

Scarborough’s accusation of “inconsistencies” highlights the parties’ dispute

about whether Tinsley held an object in his hand when Burgmann and Nyman shot

him. (Defs.’ SOMF ¶¶ 36–39); (Pl.’s Resp. to Defs.’ SOMF ¶¶ 36–39.) But this is all

immaterial to whether reasonable officers in their position would have perceived

Tinsley as a threat given the totality of the circumstances. See Graham, 490 U.S. at

386 (explaining reasonableness “must be judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight”); see also Wilson v.

Bastrop, 26 F.4th 709, 714 (5th Cir. 2022) (“This possible lacuna in [the officer’s]

testimony is immaterial to the constitutional issue. Even assuming [the decedent] did

not point a gun at [the officer’s] squad car, the undisputed facts still justified the

exercise of lethal force.”). “Also irrelevant is the fact that [Tinsley] was actually

unarmed.” Reese v. Anderson, 926 F.2d 494, 501 (5th Cir. 1991). Officers need not wait

to see a weapon before using deadly force to protect themselves when they reasonably

believe they face a deadly threat. Thompson, 257 F.3d at 899.

On this record, the officers reasonably believed Tinsley had a gun and turned to

point it at them. See Lamont, 637 F.3d at 182 (“[T]he party opposing summary

judgment in a deadly-force case must point to evidence—whether direct or

circumstantial—that creates a genuine issue of material fact, ‘and may not rely simply

on the assertion that a reasonable jury could discredit the opponent[s’] account.’”)

(citation omitted); see also Goode v. City of Philadelphia, 776 F. App’x 80, 84–85 (3d Cir.

2019) (finding “several disputed and purportedly material facts” immaterial to the

reasonableness of officers’ use of force). Under the totality of the circumstances the

officers faced, their conduct is the quintessential “split-second judgement” the Court

will not second guess. Kisela v. Hughes, 584 U.S. 100, 103 (2018) (per curiam); Barnes,

145 S. Ct. at 1363 (Kavanaugh, J., concurring) (cautioning courts against “dissect[ing]

and scrutiniz[ing] an officer’s actions with the 20/20 vision of hindsight in the peace of a

judge’s chambers”) (citation omitted).

C

1

Even if there were a genuine dispute as to the reasonableness of the force

Sergeant Burgmann and Officer Nyman used, Scarborough cannot show the two

officers violated a clearly established right. An officer’s conduct violates clearly

established law when “every reasonable [officer] would have understood that what he is

doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citation

omitted). The inquiry must be particularized to the facts of the case rather than

defined at a high level of generality. White v. Pauly, 137 S. Ct. 548, 552 (2017) (per

curiam); see also Anderson v. Creighton, 483 U.S. 635, 639 (1987) (explaining clearly

established law must be particularized so plaintiffs cannot avoid qualified immunity by

“simply alleging violation of extremely abstract rights”). “Specificity is especially

important in the Fourth Amendment context, where the Court has recognized that it is

sometimes difficult for an officer to determine how the relevant legal doctrine, here

excessive force, will apply to the factual situations the officer confronts.” Kisela, 584

U.S. at 104 (citation omitted and modified). Officers are entitled to qualified immunity

unless “existing precedent squarely governs the specific facts at issue.” Id. (citations

omitted.)

Defendants define the right by describing the precise circumstances they argue

confronted Sergeant Burgmann and Officer Nyman.6 (Mot. for Summ. J. at 20.) But

6 “Whether the law was clear and well-settled that any reasonable officer; who was responding

to a domestic disturbance call, in which the victim’s 11 year [old] daughter reported that her Mom’s

boyfriend ‘had just shot a gun at her (Mom),’ that her Mom’s bedroom door was broken down, and in

which, once on scene, responding officers were told that the bedroom blinds were being closed, they

heard intermittent female screams of fear, heard a second gunshot and, upon entering the home and

giving commands to ‘show your hands,’ observed Tinsley in the area of the bedroom doorway with an

existing precedent doesn’t need to match exactly, instead, it needs to “squarely govern[]

the specific facts at issue,” Kisela, 584 U.S. at 104, such that officers who are “plainly

incompetent or those who knowingly violate the law” are liable, not those who cross a

line drawn against a “hazy legal backdrop,” Mullenix v. Luna, 577 U.S. 7, 12, 14 (2015)

(per curiam) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

Scarborough makes no attempt to articulate a specific right. She argues

“Defendants violated Mr. Tinsley’s Fourth Amendment rights,” citing only Tennessee v.

Garner for support, apparently for the proposition that deadly force against nonviolent

suspects is forbidden. (Pl.’s Resp. in Opp’n at 20–21.) This is too broad a statement of

the “specific facts at issue.” Kisela, 584 U.S. at 104; see also id. (explaining the

Supreme Court has “repeatedly told courts” “not to define clearly established law at a

high level of generality”) (citation omitted). Garner’s deadly force test may represent

“clearly established law” for qualified immunity purposes only in “an obvious case in

which all reasonable officers would have immediately known that a suspect did not pose

the required threat.” Williams v. City of Canton, 168 F.4th 933, 942 (6th Cir. 2026)

(citation omitted). That is not the case here, so Scarborough “must instead identify a

body of relevant case law more specifically tailored” to the facts at hand. Id. (citation

omitted). But she does not cite a single case other than Tennessee v. Garner in her

briefing on this topic and does not meaningfully interact with the cases cited by

defendants. (Pl.’s Resp. in Opp’n at 20.)

object in his hands and bladed from the responding officers such that they did not have a clear view

of the hidden hand, the officer could not have reasonably believed that his life was in danger and

should not have fired his weapon in protection of his life?”

2

Setting aside the parties’ offerings, the right at issue in this case is the right to

be free from deadly force where officers responded to a domestic dispute call; had

reason to believe the suspect was armed and fired a gun during the dispute; knew that

the female involved in the dispute remained inside; heard her yelling and screaming;

heard a gunshot; entered the apartment seconds later to aid a potentially wounded

victim; issued a verbal warning and encountered a man at the end of a dimly lit

hallway turning toward them and raising his hands upward from near his waist. To

determine if this right was clearly established by March 2025, when Sergeant

Burgmann and Officer Nyman shot Tinsley, the Court has considered Supreme Court

precedent, binding Third Circuit Court of Appeals decisions and whether there is a

“robust consensus of cases of persuasive authority in the Courts of Appeals.” Peroza-

Benitez v. Smith, 994 F.3d 157, 165 (3d Cir. 2021) (citations omitted). The Court has

also “take[n] into account district court cases, from within the Third Circuit [and]

elsewhere.” Id.

The law did not establish such a right. To the contrary and as defendants point

out, many courts have determined excessive force to be constitutional when officers

reasonably believed an unarmed suspect was armed and posed a threat. See (Mot. for

Summ. J. at 15–17, 20–21) (collecting cases). Sergeant Burgmann and Officer Nyman

were not “plainly incompetent,” nor did they “knowingly violate the law.” Mullenix, 577

U.S. at 12 (citation omitted). They are entitled to qualified immunity.

IV

A

Scarborough’s Monell claim, that the Township of Abington failed to train its

officers, fails because “municipal liability will only lie where municipal action actually

caused an injury,” so a municipality “cannot be liable on a failure to train theory for

conduct that . . . did not violate the plaintiff[’s] constitutional rights.” Grazier ex rel.

White v. City of Philadelphia, 328 F.3d 120, 124 (3d Cir. 2003). Because Sergeant

Burgmann and Officer Nyman did not violate Tinsley’s constitutional rights, there can

be no finding of municipal liability against the Township of Abington.

B

Scarborough inconsistently argues her failure to supervise claim. Her pleading

alleges failure to supervise only against Chief Molloy. (Am. Compl. at 21.) But in her

response briefing she argues only that the Township of Abington failed to supervise its

officers. (Pl.’s Resp. in Opp’n at 11, 22, 24–25.) To the extent she alleges a Monell

violation, it suffers from the same flaw as her failure to train claim. See City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam).

C

The same goes for Scarborough’s failure to intervene claim. Bryant v. City of

Philadelphia, 518 F. App’x 89, 93 (3d Cir. 2013) (per curiam). Even if it weren’t fatally

flawed given the absence of an underlying constitutional deprivation, her claim falls

short. Scarborough argues Burgmann should have said “he’s down, stop” to prevent

Nyman from shooting Tinsley. (Tr. of Oral Arg., 77:3–6.) The officers collectively fired

their weapons over the course of four seconds. “An officer is only liable if there is a

realistic and reasonable opportunity to intervene.” Smith v. Mensinger, 293 F.3d 641,

651 (3d Cir. 2002). There was obviously no such opportunity here.

D

Scarborough’s conspiracy claim is also derivative and fails for the same reason.

Lazaridis v. Wehmer, 591 F.3d 666, 672 (3d Cir. 2010) (per curiam). In any event,

because a plaintiff “may not amend [her] complaint through arguments in [her] brief in

opposition to a motion for summary judgment,” Bell v. City of Philadelphia, 275 F.

App'x 157, 160 (3d Cir. 2008) (citation omitted), she may not alter her claim to include

Chief Molloy, nor may she introduce a new post hoc conspiracy to deny access claim.

Even assuming a constitutional deprivation, Scarborough’s pleaded claim—that

Sergeant Burgmann and Officer Nyman conspired to violate Tinsley’s constitutional

right—also is meritless. To prevail on such a claim under section 1983, a plaintiff must

prove that persons acting under color of state law reached an understanding to deprive

him of his constitutional rights. Jutrowski v. Township of Riverdale, 904 F.3d 280,

293–94 (3d Cir. 2018). Scarborough offers only speculation to support her claim and

she may not rely on her “suspicions” to defeat summary judgment. Fireman’s Ins. of

Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982).

E

Scarborough’s state law claims have a similar problem. First, “[p]olice officers

are privileged to commit a battery pursuant to a lawful arrest.” Groman v. Township of

Manalapan, 47 F.3d 628, 634 (3d Cir. 1995). Where an officer’s use of force is

constitutionally lawful, there can be no parallel assault and battery claim under state

law. See Boyden v. Township of Upper Darby, 5 F. Supp. 3d 731, 744 (E.D. Pa. 2014);

Nero v. Whitpain Township, No. 24-5974, 2026 WL 147010, at *5 (E.D. Pa. Jan. 20,

2026) (“[B]ecause Plaintiff cannot establish an excessive force claim, his state law

assault and battery claims similarly fail as a matter of law.”) (citing Renk v. City of

Pittsburgh, 641 A.2d 289, 293 (Pa. 1994)).

Furthermore, the Pennsylvania Political Subdivision Tort Claims Act immunizes

local agencies and their employees from tort liability subject to certain exceptions, none

of which apply here. 42 Pa. C.S. §§ 8542, 8550. At oral argument counsel seemed to

suggest defendants conduct falls into a “willful misconduct” exception. (Tr. of Oral

Arg., 86:7–87:25, 100:1–103:4.) But willful misconduct means “the actor desired to

bring about the result that followed or at least was aware that it was substantially

certain to follow, so that such desire can be implied.” Renk, 641 A.2d at 293 (citation

omitted). “In the police conduct context, the standard is even higher,” and requires

Scarborough to show officers “subjectively intended to do something that they knew

was wrongful.” Paone, 2024 WL 5107592, at *7. Scarborough makes no such showing.

Finally, causes of action “under the Pennsylvania Wrongful Death Act and the

Pennsylvania Survivor act . . . are strictly derivative—that is, they merely ‘provide a

vehicle through which plaintiffs can recover for unlawful conduct that results in

death.’” Duvall, 447 F. Supp. 3d at 338 (citation omitted). Wyleek Tinsley’s death,

while tragic, was not the result of unlawful conduct by the responding officers.

An appropriate Order follows.

BY THE COURT:

/s/ Gerald J. Pappert

Gerald J. Pappert, J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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