Victoria Geist v. Jason Ammary

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 14-3966

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VICTORIA GEIST, Motion and Natural Guardian of K.W., a Minor

v.

JASON AMMARY; CITY OF ALLENTOWN

Jason Ammary,

Appellant

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civ. Action No. 5-11-cv-07532)

District Judge: Honorable Lawrence F. Stengel

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Submitted Under Third Circuit L.A.R. 34.1(a)

July 14, 2015

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Before: SMITH, GREENAWAY, JR., and SHWARTZ, Circuit Judges.

(Opinion Filed: July 16, 2015)

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OPINION

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

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7

does not constitute binding precedent.

GREENAWAY, JR., Circuit Judge.

Appellant Jason Ammary (“Ammary”) appeals an order of the District Court

denying his motion for summary judgment on Appellee Victoria Geist’s § 1983 claims.

Ammary argues that the District Court erred in denying summary judgment on the basis

of qualified immunity.1 For the reasons set forth below, we conclude that we lack

jurisdiction to consider this interlocutory appeal. Accordingly, the appeal will be

dismissed.

I. Background

Geist brought this action on behalf of her daughter, K.W. Geist’s excessive force

and failure-to-train claims stem from a physical altercation during which Ammary

deployed his Taser on K.W. As the District Court noted throughout its opinion, the

underlying events are largely in dispute. As it was required to do, however, the District

Court drew “‘all justifiable inferences’ in favor of [Geist].” Geist v. Ammary, 40 F. Supp.

3d 467, 474 (E.D. Pa. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986)). In this interlocutory appeal, “we must accept the District Court’s set of facts as

given.” Walker v. Horn, 286 F.3d 705, 707 (3d Cir. 2002).

At the time of the incident, K.W. was a fourteen-year-old student at Allen Dieruff

High School (“Dieruff”) in Allentown, Pennsylvania. Ammary, an Allentown police

officer, was assigned as a School Resource Officer at Dieruff at the time. On the

afternoon of September 29, 2011, K.W. was walking with two friends in a street near

1

The District Court also denied Ammary’s motion for summary judgment on the

merits. Ammary does not appeal that ruling here.

2

Dieruff after students at the school had been dismissed for the day. At the same time,

Ammary and several school security officers were instructing students to disperse and to

move out of the roadway.2 K.W. avers that she did not hear Ammary tell her to leave the

street.

As K.W. was walking towards the sidewalk in compliance with the instructions of

the security officers to disperse,3 Ammary approached her from behind and grabbed her

arm.4 K.W. did not observe that Ammary was a police officer until after he had grabbed

her arm. K.W. pulled away and continued walking. Ammary approached K.W. again

and grabbed both of her arms and pushed her against a car where a struggle ensued.

K.W. tried to turn her body around to face Ammary and to ascertain why he was arresting

her. Ammary responded by putting his forearm on her neck. K.W. could not breathe and

2

Ammary testified that the officers were instructing students to disperse because

there were large groups of students gathered on the school grounds after school and they

appeared to be ready to fight. K.W., however, testified that she did not observe any large

groups of students gathered nor did she know of any students planning to fight.

3

Ammary testified that after he instructed the students to move out of the street,

K.W. and two females remained in the middle of the street and uttered profanities to

incite the crowd of students.

4

In his police report, Ammary stated he initially approached K.W. from behind,

grabbed both of her arms, and notified her that she was under arrest. However, in his

deposition testimony, Ammary claimed he first approached K.W. from the front, and did

not intend to arrest K.W. when he first grabbed her wrist, but instead intended to pull her

off to the side of the street.

3

attempted to move Ammary’s arm from her neck. She denies hitting Ammary at any

point during the incident.5

At some point, Ammary stepped away from K.W. K.W. testified that she stopped

resisting after Ammary let go of her and put her hands up when he stepped away from

her.6 Ammary then deployed his Taser in K.W.’s lower abdominal area and groin.7

K.W. testified that after she fell to the ground from the Taser, Ammary ordered her to roll

onto her stomach to be handcuffed, pushing the Taser barbs further into her body.8

II. Discussion

As a threshold matter, we must determine whether we have jurisdiction to hear this

appeal.9 As a general rule, we only have jurisdiction of appeals from “final decisions of

the district courts.” 28 U.S.C. § 1291. “[I]nterlocutory appeals—appeals before the end

of district court proceedings—are the exception, not the rule.” Johnson v. Jones, 515

U.S. 304, 309 (1995).

Ammary disputes K.W.’s testimony and claims that K.W. violently resisted

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arrest and assaulted Ammary’s head and body with her forearm and elbows.

6

Ammary maintains that K.W.’s hands were not raised when he deployed his

Taser.

Ammary claims that he was forced to aim the Taser towards K.W.’s lower torso

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because K.W.’s backpack had fallen in front of her body. K.W., however, claims that her

backpack remained on her back throughout the incident.

8

Ammary denies that he ordered K.W. to roll onto her stomach and claims she

remained on her side.

9

The District Court had jurisdiction under 28 U.S.C. § 1331. We have

“jurisdiction to determine [our] own jurisdiction,” United States v. Ruiz, 536 U.S. 622,

628 (2002), and “exercise de novo review over an argument alleging a lack of appellate

jurisdiction,” Montanez v. Thompson, 603 F.3d 243, 248 (3d Cir. 2010).

4

An established exception to the general rule applies for certain denials of qualified

immunity. This exception arises under the collateral order doctrine. Mitchell v. Forsyth,

472 U.S. 511, 525–26 (1985).10 This Court has determined that the “denial of qualified

immunity falls within the collateral-order doctrine only to the extent the denial turns on

an issue of law.” In re Montgomery Cnty., 215 F.3d 367, 373 (3d Cir. 2000); see also

Doe v. Groody, 361 F.3d 232, 237 (3d Cir. 2004). If the denial of qualified immunity

instead turns on “a factual dispute,” we lack jurisdiction over a related appeal. Groody,

361 F.3d at 237; Ziccardi v. City of Phila., 288 F.3d 57, 61 (3d Cir. 2002) (holding that

“we lack jurisdiction to consider whether the district court correctly identified the set of

facts that the summary judgment record is sufficient to prove”); Johnson, 515 U.S. at

319–20 (denying appellate jurisdiction to review a district court’s determination of

whether a dispute of fact is “genuine”).

Thus, our jurisdiction to review the District Court’s order denying summary

judgment here depends on whether “the . . . appeal raises pure questions of law or

whether it challenges the District Court’s determination of which facts were sufficiently

supported by evidence.” Blaylock, 504 F.3d at 409.

Ammary’s appeal does not raise a pure question of law. The District Court began

its qualified immunity analysis by correctly stating that Ammary’s entitlement to

10

“Under the collateral order doctrine, an interlocutory order of a district court

may be treated as a ‘final decision’ if it: ‘(1) conclusively determine[s] the disputed

question, (2) resolve[s] an important issue completely separate from the merits of the

action, and (3) [is] effectively unreviewable on appeal from a final judgment.’” Blaylock

v. City of Phila., 504 F.3d 405, 408 (3d Cir. 2007) (alterations in original) (quoting

Johnson, 515 U.S. at 310).

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qualified immunity hinges on whether a “‘reasonable officer[] in the defendant[’s]

position at the relevant time could have believed, in light of what was in the decided case

law, that [his] conduct was lawful.’” Geist, 40 F. Supp. 3d at 485 (quoting Giuffre v.

Bissell, 31 F.3d 1241, 1255 (3d Cir. 1994)). It further stated that, “‘[r]easonableness

under the second factor . . . is an issue of law for the district court to determine; however,

if there are facts material to the determination of reasonableness in dispute, then that

issue of fact should be decided by the jury.’” Id. (quoting Barton v. Curtis, 497 F.3d 331,

335 (3d Cir. 2007)).11

Here, the District Court expressly found that there are several such “facts material

to the determination of reasonableness [that] remain in dispute . . . . [and] should be

resolved by a jury, not the court.” Id. Under Geist’s version of the facts, Ammary was

not faced with the threat of a crowd of students ready to fight, K.W. did not assault

Ammary, K.W.’s hands were raised when Ammary deployed his Taser, and K.W. was

ordered to roll onto her stomach. However, under Ammary’s view of the facts, there was

a large crowd of students ready to fight and K.W. attempted to incite the crowd, resisted

11

Ammary argues that “[t]he District Court misapplied the standard for the

application of qualified immunity” because it considered whether “a combative juvenile

was entitled to heightened protections from Taser use under the Fourth Amendment.”

Ammary’s Jurisdictional Mem. at 6 (emphasis added). However, the District Court

concluded that there was no caselaw that addressed that issue, and instead based its denial

of summary judgment on several unresolved issues of fact material to the reasonableness

determination. The District Court found that “[t]hese [factual] disputes should be

resolved by a jury, not the court.” Geist, 40 F. Supp. 3d at 485. In light of the District

Court’s conclusion that the objective reasonableness of Ammary’s actions is a matter of

factual dispute, Ammary’s appeal does not present a pure question of law, and we have

no jurisdiction to resolve such issues at this stage.

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arrest, assaulted Ammary, did not have her hands raised when Ammary deployed his

Taser, and was not ordered to roll onto her stomach. Furthermore, the District Court

concluded that there were genuine disputes of material fact regarding: (1) “whether a

threat of safety was posed to Officer Ammary”; (2) “how dangerous [K.W.] appeared to

be”; (3) “what types of warnings were given to Ms. K.W. before force was applied”; and

(4) “whether [K.W.] was actively resisting [Ammary’s] commands at the time she was

tased.” Id. at 480. The District Court therefore concluded that summary judgment is

inappropriate at this stage.

On appeal, Ammary argues that his actions did not violate clearly established law

and were objectively reasonable. However, the District Court found that the parties’

actions and the circumstances surrounding those actions are in dispute and go to the heart

of Ammary’s immunity claim. Further, Ammary’s appeal is premised on a different view

of the facts than the one assumed by the District Court. Compare, e.g., Appellant Br. at

37, 41 (asserting that “K.W. actively assaulted Officer Ammary” and that it was

“reasonable for [Ammary] to believe that he [wa]s being assaulted”); with Geist, 40 F.

Supp. 3d at 478–80 (noting that whether K.W. struck Ammary was an unresolved dispute

of material fact).12

12

Ammary also claims that a surveillance video that was submitted as part of the

motion for summary judgment conclusively resolves some of the disputed issues of

material fact, such as whether K.W. struck Ammary in the head. However, this

conclusion is at odds with the District Court’s finding that the video “does not resolve

one way or the other facts being disputed regarding the excessive force claim.” Geist, 40

F. Supp. 3d at 478. Accordingly, we have no jurisdiction to entertain K.W.’s contrary

factual claims on appeal.

7

Under these circumstances, we do not have jurisdiction to consider Ammary’s

interlocutory appeal. See Barton, 497 F.3d at 336 (“Because the District Court denied

summary judgment on the ground that there is a material issue of fact to be determined by

the jury, the order . . . is one of the limited instances in which this Court does not have

jurisdiction to hear an appeal of summary judgment in a 42 U.S.C. § 1983 cause of action

where the defendant is asserting qualified immunity.”).

III.Conclusion

For the foregoing reasons, we will dismiss this appeal for lack of jurisdiction.

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