Forbes v. Township of Lower Merion

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

12-11-2002

Forbes v. Lower Merion

Precedential or Non-Precedential: Precedential

Docket No. 01-3942

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation

"Forbes v. Lower Merion" (2002). 2002 Decisions. Paper 795.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/795

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL

Filed December 11, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-3942

LORENZO A. FORBES; ELLA M. FORBES, IN THEIR OWN

RIGHT AND AS CO-ADMINISTRATORS OF THE ESTATE

OF ERIN DUDLEY FORBES, DECEASED

v.

TOWNSHIP OF LOWER MERION; JOSEPH J. DALY,

POLICE SUPERINTENDENT, INDIVIDUALLY AND IN HIS

OFFICIAL CAPACITY AS TOWNSHIP OF LOWER MERION

POLICE SUPERINTENDENT; JOHN SALKOWSKI,

OFFICER, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS A TOWNSHIP OF LOWER MERION POLICE

OFFICER; JOHN DOE, REPRESENTING UNKNOWN

EMPLOYEES OF THE LOWER MERION TOWNSHIP

POLICE DEPARTMENT, INDIVIDUALLY AND IN THEIR

OFFICIAL CAPACITIES AS TOWNSHIP OF LOWER

MERION POLICE OFFICERS; CRAIG MCGOWAN, SGT.,

individually and in his official capacity as a Tow nship of

Lower Merion Police Officer c/o Lower Merion Police

Department, 71 East Lancaster Avenue,

Ardmore, PA 19003

John Salkowski; Craig McGowan,

Appellants

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

District Court Judge: Honorable William H. Yohn, Jr.

(D.C. No. 00-cv-00930)

Argued: September 12, 2002

Before: ALITO and FUENTES, Circuit Judges, and

OBERDORFER,*District Judge

(Filed: December 11, 2002)

LLOYD G. PARRY (Argued)

Davis, Parry & Tyler

14th Floor, 1525 Locust Street

Philadelphia, PA 19102

Counsel for Appellants

SHERYL S. CHERNOFF

SUSAN F. BURT (Argued)

Burt-Collins & Chernoff

P.O. Box 237

Merion Station, PA 19066

Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

This action under 42 U.S.C. S 1983 arises out of a police

shooting in Lower Merion Township, Pennsylvania.

Defendants John Salkowski and Craig McGowan, two police

officers, appeal from an order of the District Court denying

their motion for summary judgment based on qualified

_________________________________________________________________

* The Honorable Louis F. Oberdorfer, Senior District Judge for the

District of Columbia, sitting by designation.

2

immunity. In denying that motion, the District Court held,

without elaboration, that the plaintiffs had raised genuine

issues of material fact regarding their Fourth Amendment

excessive-force claim. The scope of our jurisdiction to

review the decision of the District Court depends upon the

precise set of facts that the District Court viewed as subject

to genuine dispute. Because the District Court did not

identify this set of facts, we find that we are greatly

hampered in deciding this appeal. Accordingly, we remand

the case to the District Court so that the facts found to be

in dispute can be specified. We also announce a

supervisory rule to be followed in all subsequent cases in

which a summary judgment motion based on qualified

immunity is denied on the ground that material facts are

subject to genuine dispute. So that we can carry out our

review function without exceeding the limits of our

jurisdiction under Johnson v. Jones, 515 U.S. 304 (1995),

we will henceforth require the District Courts to specify

those material facts that are and are not subject to genuine

dispute and explain their materiality.

I.

In the early-morning hours of January 10, 2000, Mr. Erin

Dudley Forbes concluded his shift working as a security

guard and stopped at an A-Plus convenience store in Bryn

Mawr, Pennsylvania. Shortly thereafter, the clerk

telephoned 911, reporting that Forbes had robbed the store

and beaten the clerk over the head with "what looked like

a billy jack." The clerk told police that the assailant was not

otherwise armed and described Forbes and his car.

Dispatchers transmitted the description of the fleeing

suspect on police radio and announced that a robbery had

occurred.

Police caught up with Forbes in Lower Merion Township

after an automobile pursuit, and at least some of the events

that followed were captured on a grainy police videotape

that is part of the record of this case. The parties agree that

the officers surrounded Forbes’s car and shouted

commands and that Forbes then extended his middle finger

and bolted from the car, brandishing a heavy wooden staff.

Here the parties’ accounts diverge. The officers claim that

3

Forbes charged "right at" police and motioned to attack a

retreating Salkowski. By contrast, the plaintiffs claim that

Forbes darted away from the officers, but they appear to

concede that the trajectory of his footpath triangulated

towards the direction in which Salkowski also ran.

Salkowski fired one shot, felling Forbes.

After Forbes was shot, he lay on the ground,

"mumbl[ing]" or "moan[ing]," still clutching the staff, with

one hand obscured. McGowan then kicked the staff aside

and ordered Forbes to show his hands. Whether Forbes

suffered from delirium or fading consciousness or simply

intended to resist police, he did not comply. McGowan then

sprayed him once with pepper spray, called paramedics,

and minutes later shackled his hands with the help of

another officer. The defendants claim that Forbes fought

the handcuffing, but according to the plaintiffs, Forbes

offered "no resistance to the handcuffing" and was

"motionless" by that point. After Forbes was restrained,

police began administering first aid. Doctors pronounced

Forbes dead roughly a half hour after the shooting.

Forbes’s parents filed this action against Salkowski and

McGowan under 42 U.S.C. S 1983, alleging that the officers

violated Forbes’s rights under the Fourth, Fifth, and

Fourteenth Amendments. The officers moved for summary

judgment, asserting that the plaintiffs’ claims were defeated

by qualified immunity, but the District Court denied

summary judgment on the plaintiffs’ Fourth Amendment

excessive-force claim on the ground that genuine issues of

material fact existed regarding that claim. The Court did

not specify which material facts it viewed as subject to

genuine dispute, however, and this appeal followed.

II.

Although 28 U.S.C. S 1291 ordinarily limits appellate

jurisdiction to "appeals from . . . final decisions of the

district courts," certain collateral orders merit interlocutory

review because they "finally determine claims of right . . .

too important to be denied review and too independent of

the cause itself to require that appellate consideration be

deferred until the whole case is adjudicated." Cohen v.

4

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).

When a defendant moves for summary judgment based on

qualified immunity, the denial of the motion may be

appealed immediately under the collateral-order doctrine

because "[t]he entitlement is an immunity from suit rather

than a mere defense to liability[ ] and . .. is effectively lost

if a case is erroneously permitted to go to trial." Mitchell v.

Forsyth, 472 U.S. 511, 526-27 (1985). However, this right

to interlocutory review is limited "to the extent that [a claim

of qualified immunity] turns on an issue of law." Id. at 530.

For instance, we may "review whether the set of facts

identified by the district court is sufficient to establish a

violation of a clearly established constitutional right," but

we may not "consider whether the district court correctly

identified the set of facts that the summary judgment

record is sufficient to prove." Ziccardi v. City of Philadelphia,

288 F.3d 57, 61 (3d Cir. 2002). When a defendant argues

that a trial judge erred in denying a qualified-immunity

summary-judgment motion because the judge was

mistaken as to the facts that are subject to genuine

dispute, the defendant’s argument cannot be entertained

under the collateral-order doctrine but must instead await

an appeal at the conclusion of the case. See Johnson, 515

U.S. at 313-16.

Qualified immunity insulates from civil liability

government officials performing discretionary functions

insofar as "their actions could reasonably have been

thought consistent with the rights they are alleged to have

violated." Anderson v. Creighton, 483 U.S. 635, 638 (1987).

In assessing a claim of qualified immunity, we must review

the law relevant to the official’s behavior and ask whether

the official could have believed that his or her actions were

justified by law. See Good v. Dauphin Cty. Soc. Servs., 891

F.2d 1087, 1094 (3d Cir. 1989). The second part of this

inquiry contains two components. To overcome the defense

of qualified immunity, (1) the facts, "[t]aken in the light

most favorable to the party asserting the injury,[must]

show the officer’s conduct violated a constitutional right,"

Saucier v. Katz, 533 U.S. 194, 201 (2001), and (2) "[t]he

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right." Anderson, 483 U.S. at 640.

5

Qualified immunity is defeated if an official "knew or

reasonably should have known that the action he took

within his sphere of official responsibility would violate the

constitutional rights of the [plaintiff], or if he took the

action with the malicious intention to cause a deprivation

of constitutional rights or other injury." Wood v. Strickland,

420 U.S. 308, 322 (1975). The doctrine aims to exclude "the

plainly incompetent" and "those who knowingly violate the

law" while accommodating reasonable "mistaken

judgments." Hunter v. Bryant, 502 U.S. 224, 229 (1991)

(citation and internal quotation marks omitted). If an

official could have reasonably believed that his or her

actions were lawful, the official receives immunity even if in

fact the actions were not lawful.

III.

In this case, the District Court denied Salkowski’s and

McGowan’s summary-judgment motions without identifying

the set of material facts that the Court viewed as subject to

genuine dispute. As a consequence, we are greatly

hampered in ascertaining the scope of our jurisdiction. If

the District Court had specified the material facts that, in

its view, are or are not subject to genuine dispute, we could

"review whether the set of facts identified by the district

court [as not subject to genuine dispute] is sufficient to

establish a violation of a clearly established constitutional

right," Ziccardi, 288 F.3d at 61, but based on the District

Court’s spare comments in denying the defendants’

summary-judgment motion, we are hard pressed to carry

out our assigned function. We do not fault the District

Court for not specifically identifying the genuinely

disputable material facts because our prior qualified-

immunity cases have not imposed the requirement.

However, we find that the lack of such a specification

impairs our ability to carry out our responsibilities in cases

such as this.

In analogous situations where clearer statements of law

or references to the record are necessary to facilitate

meaningful appellate review, this Court has announced

supervisory rules regulating important procedural matters.

For example, in Vadino v. A. Valey Engineers, 903 F.2d 253

6

(3d Cir. 1990), we reviewed a grant of summary judgment

whose reasoning was not apparent from the record and

which did not provide any indication of the grounds on

which it was based. We noted that a requirement that

District Courts accompany such orders with some

articulation of their reasoning would not impose a serious

burden, would assist parties in crafting appellate briefs

responsive to dispositive issues, and would clearly frame

appellate review. Thus, we exercised our supervisory power

"to require the district courts in this circuit to accompany

grants of summary judgment hereafter with an explanation

sufficient to permit the parties and this court to understand

the legal premise for the court’s order." Vadino, 903 F.2d at

259. Other situations in which we have established similar

supervisory rules include, e.g., Sowell v. Butcher & Singer,

Inc., 926 F.2d 289, 295 (3d Cir. 1991) (holding that a court

entering a directed verdict pursuant to Rule 50 should "set

forth an explanation sufficient to permit this court to

understand the legal premise for the court’s order") (citation

and internal quotation marks omitted); Quality

Prefabrication, Inc. v. Daniel J. Keating Co., 675 F.2d 77, 81

(3d Cir. 1982) (ruling that "a dismissal of a complaint with

prejudice as a Rule 37 sanction must be accompanied by

some articulation on the record of the court’s resolution of

the factual, legal, and discretionary issues presented"); and

Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360,

364 (3d Cir. 1975) (holding that entry of final judgment on

a claim in a multiparty action pursuant to Rule 54(b)

should "clearly articulate the reasons and factors

underlying [the] decision to grant 54(b) certification"). "It is

essential . . . that a reviewing court have some basis for

distinguishing between well-reasoned conclusions arrived at

after a comprehensive consideration of all relevant factors,

and mere boiler-plate approval phrased in appropriate

language but unsupported by evaluation of the facts or

analysis of the law." Protective Committee for Indep.

Stockholders of TMT Trailer Ferry, Inc. v. Anderson , 390 U.S.

414, 434 (1968).

At least one other Circuit has encountered the same

difficulty in the qualified-immunity context that motivates

us to act in a supervisory capacity here. See Beck v.

Schwartz, 992 F.2d 870, 871 (8th Cir. 1993) (holding that

7

it was "error" for "the district court[to] overrule[ ]

appellant’s motion for summary judgment without reference

to th[e] [qualified immunity] defense"). Our approach differs

from Beck’s. We cannot hold that the District Court’s denial

of summary judgment constituted error here because in the

absence of a clear supervisory rule, the Federal Rules of

Civil Procedure do not impose on trial courts the

responsibility to accompany such an order with conclusions

of law. See FED. R. CIV. P. 52(a) ("Findings of fact and

conclusions of law are unnecessary on decisions of motions

under Rule . . . 56. . . ."). We instead exercise our

supervisory power to require that future dispositions of a

motion in which a party pleads qualified immunity include,

at minimum, an identification of relevant factual issues and

an analysis of the law that justifies the ruling with respect

to those issues.

Having concluded that a supervisory rule is necessary in

this context, it falls upon us to determine the appropriate

disposition of the instant appeal. In Vadino, we limited our

supervisory rule to future cases and proceeded to address

the merits rather than remand the case to the District

Court. See 903 F.2d at 259-60. That approach is common

when the record provides sufficient guidance for an

appellate court seeking to retrace the analytical steps taken

by the District Court. See also, e.g. , Quality Prefabrication,

Inc. v. Daniel J. Keating Co., 675 F.2d 77, 81 (3d Cir. 1982);

Solomon v. Continental Am. Life Ins. Co., 472 F.2d 1043,

1048 (3d Cir. 1973). By contrast, in Allis-Chalmers, we did

not address the merits of the appeal with finality and

"remanded only for a statement of reasons so that this

Court may properly determine" whether the original

decision was proper. 521 F.2d at 367 n.16 (emphasis

removed). Such a remand is favored when the record omits

key information, e.g., Gould v. Members of the New Jersey

Div. of Water Policy and Supply, 555 F.2d 340, 341 (3d Cir.

1977), or when the lack of sufficient articulation for the

decision renders appellate review unduly speculative.

Farnese v. Bagnasco, 687 F.2d 761, 766 (3d Cir. 1982). In

this case, although we are satisfied with the record’s

completeness, we are persuaded to remand by our desire

not to conduct a narrower or more expansive review than is

required by the precise contours of the District Court’s

8

order. Since we are unable to identify those contours, we

proceed to detail the parameters of the articulation

necessary for us to conduct a meaningful review.

IV.

We are familiar with the various factual disputes between

the parties and would find it helpful in deciding this appeal

for the District Court to identify which such disputes it

found genuine and material.

The plaintiffs, as noted, assert that Forbes bolted away

from the officers as they converged on him, and they

therefore dispute Salkowski’s argument that he shot Forbes

in self-defense. A diagram depicting the position of Forbes’s

body relative to the street and cars appears to constitute

one of the plaintiffs’ principal items of evidence on this

question. The plaintiffs also refer to the police video

recording and cite an examiner’s report on the trajectory of

the bullet through Forbes’s body. We are interested to know

whether the District Court found that these items of

evidence were sufficient to raise genuine factual disputes

regarding Forbes’s location, the direction in which he was

facing, or his direction of movement at the moment of the

shooting, and, if so, whether the plaintiffs’ allegations are

sufficient to establish a violation of a constitutional right.

Appellants dispute the materiality of Forbes’s location

and direction, arguing that Salkowski could reasonably

have believed himself legally entitled to fire his weapon in

any event. Pennsylvania law empowers police officers to use

deadly force when "(i) such force is necessary to prevent

[an] arrest from being defeated by resistance or escape; and

(ii) the person to be arrested has committed or attempted a

forcible felony or is attempting to escape and possesses a

deadly weapon." 18 PA. CONS. ST. S 508(A)(1) (2002). The

officers argue that a reasonable person in Salkowski’s

position, in reliance on that statute, could have believed it

lawful to act as Salkowski did. Consequently, another

important question is whether the District Court found that

a genuine issue of fact existed as to whether Forbes’s

wooden staff was or might reasonably be perceived as a

deadly weapon. During oral arguments, Appellees

9

maintained that a factual issue existed regarding this

question but conceded that the statute did not implicate

any other material issues.

The parties do not propose a statutory framework that

covers McGowan’s conduct, so we are even more hesitant to

surmise what factual issues the District Court may have

identified or considered material. At minimum, it would aid

us to know if the District Court concluded that the

Appellees raised genuine issues regarding whether Forbes

posed any danger to the officers after being shot or whether

police could reasonably assume that he might. If the

District Court considered any other factual issues bearing

on whether McGowan’s conduct was objectively

unreasonable or whether it interfered with a clearly

established constitutional right, a description and analysis

of those issues would likewise assist us considerably.

The judgment of the District Court is vacated, and we

remand the case for reentry of judgment in accordance with

the supervisory rule announced herein. This panel shall

retain jurisdiction and proceed to decide any questions

properly within our jurisdiction after the District Court

provides the requested specification.1

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

1. Judge OBERDORFER concurs in the result and in parts I, II, and IV

of the opinion. As a visiting judge he expresses no opinion about the

supervisory rule established for the Circuit in part III.

10