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.