Carswell v. Borough of Homestead

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

8-20-2004

Carswell v. Homestead

Precedential or Non-Precedential: Precedential

Docket No. 03-2290

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PRECEDENTIAL Before: NYGAARD, McKEE, and

WEIS, Circuit Judges.

UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT Filed : August 20, 2004

_____________

No. 03-2290 Charles E. Evans, Esquire (ARGUED)

Evans, Portnoy, Quinn & O’Connor

36 th Floor, One Oxford Centre

TONYA L. CARSWELL, Administratrix 301 Grant Street

of the Estate of GILBERT CARSWELL, Pittsburgh, PA 15219-6401

deceased, on behalf of the Estate of

GILBERT CARSWELL, deceased and Attorneys for Appellant

TONYA L. CARSWELL, Administratrix

of the Estate of GILBERT CARSWELL, David J. MacMain, Esquire (ARGUED)

deceased on behalf of the NEXT OF KIN Montgomery, McCracken, Walker &

of GILBERT CARSWELL, deceased, Rhoads, LLP

123 South Broad Street

Appellant Philadelphia, PA 19109-1090

v. Attorneys for Appellee Frank Snyder

BOROUGH OF HOMESTEAD; MARK Paul D. Krepps, Esquire (ARGUED)

ZUGER, CHIEF OF POLICE OF THE Audrey J. Copeland, Esquire

BOROUGH OF HOMESTEAD; Marshall, Dennehey, Warner, Coleman

FRANK SNYDER and Goggin

18 Campus Blvd., Suite 250

Newtown Square, PA 19070

____________

Attorneys for Appellees Borough of

APPEAL FROM THE UNITED Homestead and Police Chief Mark Zuger

STATES DISTRICT COURT FOR

THE WESTERN DISTRICT ____________

OF PENNSYLVANIA

(D.C. Civ. No. 00-cv-01184 ) OPINION

District Judge: Honorable Robert J.

Cindrich

____________

WEIS, Circuit Judge.

Argued May 11, 2004

1

In suits under 42 U.S.C. § 1983 for court for a protection from abuse order

damages against government officials for (“PFA”) 1 because her husband presented

violation of constitutional rights, the “an immediate and present danger of

Supreme Court recommends that the abuse” to her and their children. Soon

courts rule on the constitutional issue afterward, the Homestead Police went to

before reaching qualified immunity. In

this case, after hearing all of the plaintiff’s

evidence at trial, the District Court 1

Under the Pennsylvania

assumed, but did not decide whether a

Protection from Abuse Act, a plaintiff

constitutional violation had occurred and

may obtain a PFA by (1) agreement with

then granted immunity to a police officer.

the defendant, (2) obtaining a default

In the circumstances of this case, we

judgment or (3) proving the allegation of

conclude that this procedure was not

abuse by a preponderance of the

reversible error and we will affirm on the

evidence at a hearing. See 23 Pa. Cons.

merits of the immunity ruling.

Stat. Ann. § 6107 (West 2001); 23 Pa.

Gilbert Carswell, the plaintiff’s Cons. Stat. Ann. § 6108 (West 2004). At

husband, was fatally shot by a Homestead a minimum, a plaintiff must have a

Borough patrolman in the course of reasonable fear of bodily injury to obtain

apprehension by the police. Plaintiff a PFA. See 23 Pa. Cons. Stat. Ann. §

brought suit pursuant to 42 U.S.C. § 1983 6102 (West 2001). One of the typical

alleging that her husband’s death was the hallmarks of a PFA is the prohibition on

result of constitutional violations by contact between the plaintiff and

Officer Frank Snyder, Police Chief Mark defendant. 23 Pa. Cons. Stat. Ann. §

Zuger, and the Borough of Homestead. 6108(a)(6).

The District Court declined to grant

qualified immunity on summary judgment, The statute requires the

reasoning that factual disputes existed at court to issue a PFA to the police

that time. At trial, after the plaintiff had department with appropriate jurisdiction

rested at the end of her case, the District to enforce the order, as well as the state

Court granted judgment to the defendants police. Police officers may arrest a

as a matter of law pursuant to Fed. R. Civ. defendant for violating a PFA without a

P. 50. warrant upon probable cause, whether or

not the violation occurred in their

The tragic death of Gilbert Carswell

presence. 23 Pa. Cons. Stat. Ann. §

was the culmination of months of domestic

6113(a) (West 2001). A defendant who

discord. After three and one-half years of

violates a PFA and is convicted of

marriage, plaintiff and the decedent-

indirect criminal contempt is subject to

husband became estranged. In July 1999,

imprisonment of up to six months. 23

some four months before the shooting

Pa. Cons. Stat. Ann. § 6114 (b) (West

occurred, the plaintiff applied to the state

2001).

2

the family residence when the husband, because of concern that the husband would

despite the PFA, came to the home and return.

punched the plaintiff.

After the fourth entry which

On July 27, 1999, plaintiff applied occurred at 12:40 a.m., the police again

for a second PFA, asserting that her responded, but the husband escaped. To

husband had ripped the telephone from the protect plaintiff, Officer Shipley remained

wall, broken a table, threatened to hit her in the home, as he had earlier, while other

and sexually assaulted her. In early officers set up a perimeter in the area.

August, the police were called to the home

The husband was spotted at 2:10

when the husband struck the plaintiff in

a.m. by a police officer who radioed the

the face with his fist.

information to the law enforcement

The plaintiff filed an indirect personnel in the area. Two other officers,

criminal complaint on October 10, 1999 responding to the alert, cornered the

because her husband threatened to kick her husband on the porch of a home nearby.

and pistol-whip her brother. One week One of the policemen drew his gun,

later, the police were summoned because confronted the husband, and ordered him

the husband had once again violated the to lie on the floor. He raised his hands in

PFA. In evading apprehension, he a surrender gesture, but then suddenly

rammed a police car. As a consequence, a jumped over the porch railing and ran into

felony warrant was issued for his arrest. the darkness.

On the evening of November 17 On hearing that the husband had

and the early morning hours of November been sighted, Officer Shipley left the

18, 1999, the husband entered the home on family home and joined in the pursuit. He

four separate occasions. He broke a was standing in Boone Way, a narrow

window to gain admittance, ransacked the alley, when he saw the husband jump from

kitchen, and smashed the television set. the roof of a garage on the south side of

On each occasion, the police came to the the roadway. The husband then ran in a

scene, but were unsuccessful in attempts to westerly direction with Shipley in pursuit.

capture him.

At this point, defendant Snyder

After the second incident, plaintiff turned his police car into Boone Way from

and a teenage girl, who was staying at the an intersecting street west of the garage.

house, armed themselves with butcher He saw the husband some 20-30 feet away,

knives. After the third entry, a patrolman running toward the cruiser. Snyder

remained in the house for an hour to stopped his car somewhat diagonally

provide security for the plaintiff. across the alley and got out on the left side,

Moreover, the police decided that their leaving the door open. The headlights were

previous shift would remain on duty on as were the lights in the cruiser’s

together with the oncoming officers overhead bracket directed toward each side

3

of the alley. he would not have pulled his gun from the

holster. He further testified that he

Snyder then went to the right of his

graduated from the police academy before

car about 2-3 feet behind the rear bumper.

being hired, and had attended yearly

Despite orders to stop, the husband

refresher courses provided by the

continued to run toward the police car,

Commonwealth of Pennsylvania.

with hands extended in front of him at

shoulder height, the palms pointed Plaintiff called Dr. R. P. McCauley,

forward. Snyder could see that the a criminologist, to describe proper police

husband’s hands were empty when he procedures. He stated that “knowing that

reached the front of the patrol car. the guy was unarmed, a police officer

should not have drawn his weapon from

As he took a firing position at the

the holster, but should have pushed,

rear of his car, Snyder took off the safety

tackled, or tripped the fleeing suspect.”

on his gun. He fired when, according to

the plaintiff’s expert’s testimony, the Police Chief Zuger testified that the

husband’s chest was 24-36 inches from the manual for Borough officers cautioned

gun’s muzzle and the palm of his left hand them about the use of deadly force and the

was 12-24 inches away from the muzzle. continuum that was to be followed. He

The one shot that was fired entered the also explained that there was no

husband’s chest in the center, struck the requirement that officers become qualified

heart and exited on the extreme left of his to use pepper spray or a baton. Zuger said

back. further that Snyder had been an officer for

14 years and that there had never been a

The Borough did not provide

complaint against him.

Snyder with a baton or pepper spray, nor

were they required. The use of these non- After the plaintiff rested, the

lethal weapons was permitted, but only defendants moved for judgment as a

after an officer had successfully completed matter of law under Fed. R. Civ. P. 50.

applicable familiarization programs. The district judge, referring to Saucier v.

Snyder had not received such training and Katz, 533 U.S. 194 (2001), stated that in

was armed only with a gun. ruling on qualified immunity, he would

view the facts in the light most favorable

Plaintiff introduced portions of

to the plaintiff. He therefore assumed that

Snyder’s discovery deposition into

the shooting was intentional and not

evidence, including a statement that he did

accidental, but that he was not required to

not know that the husband was unarmed.

decide whether the officer’s conduct was

Further, given the facts and evidence that

right or wrong. Rather, the issue was

he had at the time, Snyder believed the

whether it was clear what a reasonable

husband may have had a weapon on his

officer would have done and, if that was

person. Snyder also said that if he had

not established, the policeman was entitled

had non-lethal weapons in his possession,

4

to immunity. In the circumstances present, motion for judgment as a matter of law

the court determined that Officer Snyder against that party with respect to a claim

was entitled to qualified immunity and . . . that cannot under the controlling law

entered judgment in his favor. be maintained . . . without a favorable

finding on that issue.” In ruling on that

The court further ruled that there

motion, the court construes disputed issues

was no evidence to fasten personal liability

of fact in a light most favorable to the non-

on defendant Zuger. As to him, in his

movant. Northview Motors, Inc. v.

official capacity, the grant of immunity to

Chrysler Motors Corp., 227 F.3d 78, 88

Snyder relieved Zuger as well as the

(3d Cir. 2000).

Borough from liability. In addition, the

trial judge found that nothing in the II.

Constitution required a municipality, or its

Use of excessive force by a law

police department, to maintain a list of

enforcement officer is considered a

particularized type of equipment that must

“seizure” under the Fourth Amendment,

be furnished to its officers. The failure to

which prohibits such unlawful action.

provide non-lethal weapons did not rise to

Graham v. Connor, 490 U.S. 386, 395

a constitutional level.

(1989); Tennessee v. Garner, 471 U.S. 1, 7

On appeal, plaintiff argues that the (1985). The test is an objective one, which

District Court erred in granting judgment scrutinizes the reasonableness of the

for defendant Snyder because there were challenged conduct. The facts to be

disputes over material facts and questions examined include “the severity of the

as to his credibility. Moreover, plaintiff crime at issue, whether the suspect poses

asserts that Homestead and Chief Zuger an immediate threat to the safety of the

should not have been automatically officer or others, and whether he is

dismissed because Snyder was granted actively resisting arrest or attempting to

immunity. Snyder defends the District evade arrest by flight.” Graham, 490 U.S.

Court’s ruling and asserts as an alternate at 396. Reasonableness is to be evaluated

basis for affirmance that the plaintiff failed from the “perspective of a reasonable

to establish a violation of a constitutional officer on the scene, rather than with the

right. 20/20 vision of hindsight.” Id.

I. In Tennessee v. Garner, 471 U.S. at

11, the Court phrased the test as follows:

Fed. R. Civ. P. 50(a)(1) provides

“[w]here the officer has probable cause to

that during a jury trial, if “a party has been

believe that the suspect poses a threat of

fully heard on an issue and there is no

serious physical harm, either to the officer

legally sufficient evidentiary basis for a

or to others, it is not constitutionally

reasonable jury to find for that party on

unreasonable to prevent escape by using

that issue, the court may determine the

deadly force.” In Garner, a fleeing teenage

issue against that party and may grant a

5

burglar was shot and killed by a policeman same position as the District Court with

who never attempted to defend his action respect to the admonition in Siegert v.

on any basis other than the need to prevent Gilley, 500 U.S. 226 (1991) and Saucier to

an escape, a justification the Court refused decide the constitutional issue before

to accept. considering qualified immunity. See, e.g.,

Bell v. Johnson, 308 F.3d 594 (6 th Cir.

Here, the District Court did not

2002).

make a specific finding that the plaintiff’s

evidence established a constitutional It is quite understandable that the

violation, but pragmatically “assumed” trial judge was hesitant to rule that a

that for purposes of the Rule 50 motion constitutional violation had occurred on

such a showing had been made. The court the facts in the record at that point when

then moved onto the issue of whether the qualified immunity issue offered a

Officer Snyder was entitled to qualified more sure-footed disposition of the Rule

immunity. 50 motion. Here, unlike Saucier and

Siegert, the case had already been in trial

The court was fully aware of

for a week. Consequently, Snyder had

Saucier’s explanation of the difference

already lost much of the benefit of

between the determination of excessive

qualified immunity – freedom from trial.

force in the constitutional sense and the

See, e.g., Bennett v. Murphy, 274 F.3d

ruling on qualified immunity. Comments

133, 136 (3d Cir. 2002).

made by the trial judge during argument on

the Rule 50 motion leave no doubt on that It is preferable to resolve the

score. That he reviewed the evidence qualified immunity issue at the summary

bearing on the Fourth Amendment issue judgment, or earlier, stage, but if this is not

favorably to the plaintiff was apparent. possible, it remains appropriate to consider

the matter in a Rule 50(a) motion. See,

The judge stated that “the

e.g., Ehrlich v. Town of Glastonbury, 348

constitutional violation requires an

F.3d 48, 49 (2d Cir. 2003); Johnson v.

intentional deprivation of rights and for

Breeden, 280 F.3d 1308, 1317 (11 th Cir.

these purposes then we are going to

2002).

assume that the shooting was intentional.”

Later in the colloquy he commented, “. . . The Court of Appeals in Siegert

I’m not sure that it wasn’t [a situation] approved the grant of immunity on

where he [the officer] was justified in summary judgment, but the Supreme Court

using deadly force.” affirmed by determ ining th at no

constitutional violation had occurred.

Our appellate review of a Rule 50

Seigert, 500 U.S. at 230-35. Saucier held

ruling is plenary and is similar to that in a

that the defendant was entitled to qualified

summary judgment appeal. We review the

immunity, and it reversed the Court of

record as would a District Court. This

Appeals’ decision, which had denied

scope of appellate review places us in the

6

qualified immunity at the summary contrast here, the expert opinion issue has

judgment stage because a material factual not been briefed on appeal. In such a

dispute existed. Saucier, 533 U.S. at 199, setting we are most reluctant to undertake

209. Those procedural differences with an analysis sua sponte. See Garner, 471

the case before us are not dispositive, but U.S. at 22 (“As for the policy of the Police

they are factors that have some bearing. Department, the absence of any discussion

of this issue by the courts below, and the

We believe that the circumstances

uncertain state of the record, preclude any

here, however, are sufficiently unlike those

c o n si d e r a ti o n o f i t s v a l i d it y. ” ).

in Saucier and Siegert that we may

Accordingly, we assume, but do not

proceed directly to the qualified immunity

decide, that plaintiff established a Fourth

issue without ruling preliminarily on the

Amendment constitutional violation and

constitutional violation claim. See

proceed to the immunity issue.

Ehrlich, 348 F.3d at 55-60. We are

hesitant to hold that the jury could find

excessive force based on the record here.

III.

An officer sued for a violation of

It appears to us that without the

constitutional rights may be entitled to the

testimony of Dr. McCauley, the plaintiff

defense of qualified immunity, that is, an

failed to establish a constitutional

exemption from trial as well as from

violation. See Cowan ex rel. Estate of

liability for the alleged wrong. Saucier,

Cooper v. Breen, 352 F.3d 756 (2d Cir.

533 U.S. at 200; Garner, 471 U.S. 1;

2003) (expert opinion was part of

Harlow v. Fitzgerald, 457 U.S. 800 (1982).

plaintiff’s excessive force record). We

The formula for analyzing a qualified

have serious doubts about the admissibility

immunity claim is a several stage process.

of his opinion that Snyder should not have

First, the court is to decide whether a

drawn his gun based on the expert’s

constitutional violation has occurred, and

assumption that the officer knew the

then it must “‘proceed to determine

husband was unarmed.

whether that right was clearly established

We recognize that expert opinions at the time of the alleged violation.’”

can be redacted from the record on appeal Wilson v. Layne, 526 U.S. 603, 609 (1999)

where they are found to be inadmissible (quoting Conn v. Gabbert, 526 U.S. 286,

and the court may then proceed to enter 290 (1999)). A defendant “may . . . be

judgment based on the remaining shielded from liability for civil damages if

evidence. Weisgram v. Marley Co., 528 [his] actions did not violate ‘clearly

U.S. 440 (2000). In Weisgram, however, established statutory or constitutional

the admissibility of the expert testimony rights of which a reasonable person would

had been the focal point of appeal and had have known.’” Hope v. Pelzer, 536 U.S.

been thoroughly briefed and argued. In 730, 739 (2002) (quoting Harlow, 457

7

U.S. at 818). City of Riviera Beach, 208 F.3d 919, 926-

27 (11th Cir. 2000)). Furthermore, “in

“For a constitutional right to be

addition to the deference officers receive

clearly established, its contours ‘must be

on the underlying constitutional claim” in

sufficiently clear that a reasonable official

excessive force cases, “qualified immunity

would understand that what he is doing

can apply in the event the mistaken belief

violates that right.’” Id. (quoting

was reasonable.” Id. We have followed

Anderson v. Creighton, 483 U.S. 635, 640

this doctrine in excessive force claims

(1987)). See also Groh v. Ramirez, ___

where the police shot a citizen. See, e.g.,

U.S. ___, 124 S.Ct. 1284 (2004)

Bennett, 274 F.3d 133; Curley v. Klem,

(explaining that whether immunity is

298 F.3d 271 (3d Cir. 2002); Henry v.

available depends on whether the

Perry, 866 F.2d 657 (3d Cir. 1989).

c o n s t it u t io n a l right w a s c l e ar ly

established.); Saucier, 533 U.S. at 202 The importance of the factual

(noting that the relevant inquiry is background raises the question of whether

“whether it would be clear to a reasonable the decision as to the applicability of

officer that his conduct was unlawful in qualified immunity is a matter for the court

the situation he confronted.”). or jury. The Courts of Appeals are not in

agreement on this point. We held in Doe

Once these requirements are found

v. Groody, 361 F.3d 232, 238 (3d Cir.

to have been satisfied, the inquiry proceeds

2004), that qualified immunity is an

to another, closely related issue, that is,

objective question to be decided by the

whether the officer made a reasonable

court as a matter of law. See also

mistake as to what the law requires.

Bartholomew v. Pennsylvania, 221 F.3d

Saucier emphasized that the inquiry for

425, 428 (3d Cir. 2000). The jury,

qualified immunity eligibility is distinct

however, determines disputed historical

from establishment of a constitutional

facts material to the qualified immunity

violation of excessive force. As the Court

question. See Sharrar v. Felsing, 128 F.3d

explained, “[t]he concern of the immunity

810, 828 (3d Cir. 1997). District Courts

inquiry is to acknowledge that reasonable

may use special interrogatories to allow

mistakes can be made as to the legal

juries to perform this function. See, e.g.,

constraints on particular police conduct

Curley, 298 F.3d at 279. The court must

. . . [i]f the officer’s mistake as to what the

make the ultimate determination on the

law requires is reasonable, however, the

availability of qualified immunity as a

officer is entitled to the immunity

matter of law. See Curley, 298 F.3d at

defense.” Saucier, 533 U.S. at 205.

279; Sharrar, 128 F.3d at 828 (citing

Qualified immunity operates to Hunter v. Bryant, 502 U.S. 224 (1991)).

“protect officers from the sometimes ‘hazy Several other Courts of Appeals have

border between excessive and acceptable

force.’” Id. at 206. (quoting Priester v.

8

adopted a standard similar to ours.2 In conduct would have been clear, we must

contrast, other Courts of Appeals have then determine whether he made a

held that District Courts may submit the reasonable mistake. “[W]here there is ‘at

issue of qualified immunity to the jury. 3 least some significant authority’ that lends

support of the police action, we have

All of the events leading up to the

upheld qualified immunity even while

pursuit of the suspect are relevant. See

deciding that the action in question

Abraham v. Raso, 183 F.3d 279, 292 (3d

violates the Constitution.” Groody, 361

Cir. 1999). The question is whether, in the

F.3d at 243 (internal citation omitted)

circumstances here, it would have been

(quoting Leveto v. Lapina, 258 F.3d 156,

clear to a reasonable officer that Snyder’s

166 (3d Cir. 2001)). See also In re City of

conduct was unlawful in the situation he

Philadelphia Litig., 49 F.3d 945, 970 (3d

confronted. If it would not have been

Cir. 1995).

clear, then qualified immunity is

appropriate. A survey of the circumstances

known to Snyder is necessary to properly

If the wrongfulness of the officer’s

apply this test. After he arrived on duty as

the officer in charge he had been given

2

See, e.g., Rivera-Jimenez reports on the events at the plaintiff’s

v. Pierluisi, 362 F.3d 87, 95 (1 st Cir. home. He was aware that the husband had

2004); Stephenson v. Doe, 332 F.3d 68, violated the PFA four times within the past

80-81 (2d Cir. 2003); Knussman v. several hours and that it was thought

Maryland, 272 F.3d 625, 634 (4 th Cir. prudent to have an officer remain in the

2001); Warlick v. Cross, 969 F.2d 303, house to ease the fears of plaintiff, who

305 (7 th Cir. 1992) Johnson v. Breeden, had armed herself with a knife. Snyder

280 F.3d 1308, 1318 (11 th Cir. 2002). was also in radio contact with the other

officers who were in pursuit of the

3

See, e.g., McCoy v. husband.

Hernandez, 203 F.3d 371, 376 (5 th Cir.

Before the shooting occurred, the

2000); Fisher v. City of Memphis, 234

husband had escaped from an armed

F.3d 312, 317 (6 th Cir. 2000); Turner v.

policeman and the chase was still

Arkansas Ins. Dept., 297 F.3d 751, 754

underway with a number of officers in

(8 th Cir. 2002); Ortega v. O’Connor, 146

pursuit. The husband was running at full

F.3d 1149, 1155-56 (9 th Cir. 1998);

speed directly toward Snyder’s police

Maestas v. Lujan, 351 F.3d 1001, 1007-8

cruiser. Ignoring orders to stop, the

(10th Cir. 2003). But see Peterson v. City

husband kept charging at the officer who

of Plymouth, 60 F.3d 469, 475 (8 th Cir.

held his fire until the muzzle of his gun

1995)(explaining that qualified immunity

was two feet away from the husband.

is ultimately a question of law and that

Although after the shooting it was

“[t]he jury’s role is limited to settling

determined that the husband was unarmed,

disputes as to predicate facts”).

9

Snyder denied that he knew that at the time day. What constitutes ‘reasonable’ action

and there was no evidence to the contrary. may seem quite different to someone

facing a possible assailant than to someone

analyzing the question at leisure.”

In these circumstances a reasonable

officer could believe that firing at the We are not persuaded that Officer

suspect was a proper response. A Snyder made a mistake in the use of his

reasonable officer would not be expected weapon, but even if it was an error, it was

to take the risk of being assaulted by a such as a reasonable officer could have

fleeing man who was so close that he made. Consequently, the District Court’s

could grapple with him and seize the gun. entry of judgment in favor of defendant

Our recitation of these events is a Snyder will be affirmed.

discussion in slow motion of an incident

IV.

that took place in a matter of seconds.

Officer Snyder had no time for the calm, Having held that Officer Snyder

thoughtful deliberation typical of an was entitled to qualified immunity, the

academic setting. District Court determined that it was

obligated to grant judgment as a matter of

The plaintiff’s expert, Professor

law in favor of the Borough and Chief

McCauley, thought that Snyder should not

Zuger. We reach the same conclusion, but

have pulled his gun but rather should have

do so for different reasons.

chosen to tackle or otherwise physically

subdue the suspect. The expert’s opinion Because as a predicate to its

did not refer to the question of mistake and decision on immunity, the court had

consequently there is no dispute of fact. assumed that Snyder had committed a

Curley, 298 F.3d at 279. In any event, this cons titutional viola tion, we must

is a question of law to be decided by the determine whether the Borough or police

court as a matter of law, Groody, 361 F.3d chief were liable for that violation. Based

at 238, rather than by expert opinion. See on our review of the record, we conclude

Peterson v. City of Plymouth, 60 F.3d 469, that the plaintiff failed to present evidence

475 (8 th Cir. 1995) (expert opinion not fact from which a reasonable jury could find

based but only a legal conclusion). liability on the part of these defendants.

We conclude that at most Synder’s A municipality cannot b e

conduct was a mistake that was reasonable responsible for damages under section

under the circumstances. As Smith v. 1983 on a vicarious liability theory,

Freland, 954 F.2d 343, 347 (6 th Cir. 1992), Monell v. New York City Dept. of Soc.

said, “[w]e must never allow the Servs., 436 U.S. 658, 694-95 (1978), and

theoretical, sanitized world of our “can be found liable under § 1983 only

imagination to replace the dangerous and where the municipality itself causes the

complex world that policemen face every constitutional violation at issue.” City of

10

Canton v. Harris, 489 U.S. 378, 385 489 U.S. at 385).

(1989). District Courts must review

The record here fails to establish

c la im s of m unicip al li a b ility

deliberate indifference or causation. Chief

“independently of the section 1983 claims

Zuger testified that officers attend annual

against the individual police officers.”

in-service courses, where they study,

Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d

among other subjects, relevant court

Cir. 1996); Fagan v. City of Vineland, 22

opinions. Officer Snyder testified that he

F.3d 1283, 1294 (3d Cir. 1994).

was present at these sessions. Zuger

The plaintiff’s municipal liability updated the Homestead police manual in

claim can be divided into two categories: 1997 and directed his officers to become

(1) failure to properly train its police familiar with the updated policy manual,

officers in the constitutional use of deadly which covered the “continuum of force.”

force and (2) failure to equip police

This evidence did not establish a

officers with alternatives to lethal

lack of training on the use of deadly force

weapons.

that amounted to a deliberate indifference,

A plaintiff must identify a nor does it demonstrate a pattern of

municipal policy or custom that amounts underlying constitutional violations that

to deliberate indifference to the rights of should have alerted Homestead to an

people with whom the police come into inadequate training program. The record

contact. City of Canton, 489 U.S. at 388. does not meet the high burden of proving

This typically requires proof of a pattern of deliberate indifference, nor does it show

underlying constitutional violations. Berg that Homestead’s actions caused a

v. County of Allegheny, 219 F.3d 261, 276 constitutional violation. We conclude that

(3d Cir. 2000). Although it is possible, the plaintiff failed to present evidence

proving deliberate indifference in the from which a reasonable jury could find

absence of such a pattern is a difficult task. municipal liability.

See id.

Furthermore, we have never

In addition to proving deliberate recognized municipal liability for a

indifference, a plaintiff must also constitutional violation because of failure

demonstrate that the inadequate training to equip police officers with non-lethal

caused a constitutional violation. See weapons. We decline to do so on the

Grazier v. City of Philadelphia, 328 F.3d record before us. In Plakas v. Drinski, 19

120, 124-25 (3d Cir. 2003). There must be F.3d 1143, 1150-51 (7 th Cir. 1994), the

“a direct causal link between a municipal Court of Appeals for the Seventh Circuit

policy or custom and the alleged rejected the claim that a county had

constitutional deprivation.’” Brown v. violated a suspect’s constitutional rights by

Muhlenberg Township, 269 F.3d 205, 214 failing to equip its police officers with

(3d Cir. 2001) (quoting City of Canton, alternatives to deadly force. In holding

11

that the constitution does not mandate the point to something the city ‘could have

types of equipment a police department done’ to prevent the unfortunate incident.”

must provide to its officers, the court Permitting a lesser standard than deliberate

explained: indifference would “engage the federal

courts in an endless exercise of second-

“We do not think it is wise

guessing municipal employee training

policy to permit every jury

programs. This is an exercise we believe

in these cases to hear expert

the federal courts are ill suited to

testimony that an arrestee

undertake as well as one that would

would have been uninjured

implicate serious questions of federalism.”

if only the police had been

City of Canton, 489 U.S. at 392.

able to use disabling gas or

a capture net or a taser (or Mandating the type of equipment

even a larger number of that police officers might find useful in the

police officers) and then performance of their myriad duties in

decide that a municipality is frequently unanticipated circumstances is

liable because it failed to a formidable task indeed. It is better

buy this equipment (or assigned to municipalities than federal

increase its police force). courts.

There can be reasonable

We conclude that the judgment as a

debates about whether the

matter of law in favor of the Borough and

Constitution also enacts a

Chief Zuger as well as that in favor of

code of criminal procedure,

Snyder must be affirmed.

but we think it is clear that

the Constitution does not

enact a police

Estate of Carswell v. Borough of

administrator’s equipment

Homestead et al., No. 03-2290

list.” Plakas, 19 F.3d at

1150-51 (footnote omitted). McKee, J., concurring as to parts I, II, and

III and dissenting as to part IV.

See also Salas v. Carpenter, 980 F.2d 299,

310 (5 th Cir. 1992). I join Parts I, II and III of the

majority opinion because I agree that

The Supreme Court has not yet

Officer Snyder is entitled to qualified

ruled in a case similar to Plakas, but

immunity as a matter of law. I also agree

language in the failure-to-train cases is

that the District Court did not err

pertinent. In City of Canton, 489 U.S.

analytically in assuming arguendo that a

392, we read: “In virtually every instance

constitutional violation had occurred.4

where a person has had his or her

constitutional rights violated by a city

4

employee, a § 1983 plaintiff will be able to Cf. Grabowski v. Brown,

922 F.2d 1097, 1110 (3d Cir. 1991), cert.

12

However, I must respectfully dissent from citation omitted). We evaluate whether an

part IV of the majority opinion because I officer’s conduct was reasonable, and thus

think that, viewed in the light most whether the officer is entitled to qualified

favorable to plaintiff, the evidence immunity, based upon the officer’s

establishes a prima facie case of liability perspective at the time he/she acted.

against the Borough of Homestead and Graham v. Connor, 490 U.S. 386, 396

against Homestead Police Chief M ark (1989). We thereby avoid the inequities

Zuger in his official capacity (collectively that might result from the 20/20 vision that

hereafter referred to as the “Borough”).5 comes with hindsight. Id.

I. Here, however, the usual concerns

about judging an officer’s use of force

This case illustrates all too clearly

from the perspective of hindsight are not

the daily reality in which police officers

present because our analysis has the

often have to make split-second, life-and-

benefit of Officer Snyder’s candid

death, decisions. The doctrine of qualified

testimony. He testified that he saw

immunity recognizes that reality and

nothing in Carswell’s hands as Carswell

protects police from liability that might

ran toward him. App. at 1061a.6 He was

otherwise arise from the “sometimes hazy

then asked, “Had you had non-lethal

border between excessive and acceptable

weapons, you would not have pulled your

force[.]” Saucier v. Katz, 533 U.S. 194,

gun [as Carswell ran towards you], am I

206 (2001) (internal quotation marks and

correct?” He responded, “Yes.” Id. at

1064a. That testimony would allow a jury

denied sub nomine Borough of Roselle v. to conclude that Officer Snyder used

Brown, 501 U.S. 1218 (1991) (finding it excessive force in fatally shooting

“illogical and contrary to the interests of Carswell and that he did so knowingly.

judicial economy” that this court could not

directly hold that “a constitutional right As the majority ably discusses, the

allegedly violated could not have been fact that a jury could conclude that Snyder

clearly established because it has not been used excessive force to subdue Carswell

recognized”). Further, I share the majority’s and thus violated Carswell’s Fourth

skepticism regarding the admissibility of Dr. Amendment rights is not enough, standing

McCauley’s expert testimony. See Maj. Op. alone, to deprive him of qualified

at 15-16; see also Peterson v. City of immunity. It is, however, enough to

Plymouth, 60 F.3d 469, 475 (8th Cir. 1995). support a finding that the use of excessive

5 force resulted from the Borough’s policy

Because the claim against

Zuger in his official capacity is

tantamount to a claim against the 6

The officer was asked,

Borough because it employs him, see “What you clearly saw is they were empty,

Hafer v. Melo, 502 U.S. 21, 25 (1991), the hands?” and he answered, “Yes.” App. at

we deal with both claims at once. 1061a.

13

and custom of providing police officers Harris, 489 U.S. 378, 385-88 (1989). A

only with guns, i.e. lethal weapons.7 The municipality cannot, however, be held

jury could conclude from Snyder’s liable for the alleged constitutional

testimony that, at the very moment he fired deprivation unless “there is a direct causal

the fatal shot, he believed that he was link between a municipal policy or custom

using excessive deadly force where non- and the [] deprivation.” Id. at 385.9 My

lethal force would suffice. Indeed, if the colleagues believe that “the record here

jury accepted his testimony as true, it fails to establish deliberate indifference or

would have been hard to conclude causation” as a matter of law. Maj. Op. at

anything else. The jury could therefore 26. However, “whether or not a

reason that the officer had to resort to defendant’s conduct amounts to deliberate

excessive force solely because the indifference has been described as a

Borough left him no alternative but to use

his gun in a situation where non-lethal

force could reasonably have been officials . . . so permanent and well settled as

employed to subdue Carswell. to virtually constitute law.” Berg v. County

of Allegheny, 219 F.3d 261, 275 (3d Cir.

A. 2001) (internal quotation marks and citation

omitted). “The policy or adopted custom

To establish a municipality’s

that subjects a municipality to § 1983

liability under § 1983, the plaintiff must liability may relate to the training of police

show that plaintiff’s constitutional rights officers. A municipality’s failure to train its

were violated by the municipality’s police officers can subject it to liability,

deliberate indifference as reflected in its however, only where it reflects a deliberate

policy or custom.8 See City of Canton v. or conscious choice by the municipality – a

policy as defined in Supreme Court cases.”

Brown v. Muhlenberg Township, 269 F.3d

7

The qualified immunity of 205, 215 (3d Cir. 2001) (internal quotation

the police officers and the liability of the marks, brackets and citation omitted).

Borough are two separate and distinct issues,

9

as the majority explains. See Maj. Op. at 25 A municipality like the

(citing Kneipp v. Tedder, 95 F.3d 1199, Borough “may . . . be sued directly if it is

1213 (3d Cir. 1996) and Fagan v. City of alleged to have caused a constitutional tort

Vineland, 22 F.3d 1283, 1294 (3d Cir. through a policy statement . . . officially

1994)). adopted and promulgated by that body’s

officers.” City of St. Louis v. Praprotnik,

8

“Policy is made when a 485 U.S. 112, 121 (1988) (internal quotation

decision maker possessing final authority to marks and citation omitted). Alternatively, a

establish municipal policy with respect to plaintiff can establish a causal link between

the action issues an official proclamation, the alleged constitutional violation and a

policy, or edict.” Kneipp, 95 F.3d at 1212 municipality’s custom or practice.

(internal quotation marks and citation Muhlenberg Township, 269 F.3d at 214-15.

omitted). “Customs are practices of state

14

classic issue for the fact finder and a elaborated upon this in Board of County

factual mainstay of actions under § 1983.” Comm’rs of Bryan County v. Brown, 520

A.M . v. Luzerne Cty. Juvenile Detention U.S. 397 (1997). It explained:

Ctr., 372 F.3d 572, 588 (3d Cir. 2004)

In leaving open in Canton

(internal quotation marks, citation and

the poss ibility that a

brackets omitted). Given the evidence

plaintiff might succeed in

here, that should have been an issue for the

carrying a failure-to-train

jury to decide and the Borough was

claim without showing a

therefore not entitled to judgment as a

pattern of constitutional

matter of law under Rule 50.

violations, w e s im ply

In Brown v. Muhlenberg Township, hypothesized that, in a

269 F.3d 205, 215 (3d Cir. 2001), we narrow range of

quoted City of Canton, noting: circumstances, a violation of

federal rights may be a

It may seem contrary to

highly predictable

common sense to assert that

consequence of a failure to

a municipality will actually

equip law enforcement

have a policy of not taking

officers with specific tools

reasonable steps to train its

to hand le recu rring

employees. But it may

situations. The likelihood

happen that in light of the

that the situation will recur

duties assigned to specific

and the predictability that an

officers or employees the

officer lacking specific tools

need for more or different

to handle that situation will

training is so obvious, and

violate citizens’ rights could

the inadequacy so likely to

justify a finding that

result in the violation of

policymakers’ decision not

constitutional rights, that the

to train the officer reflected

policymakers of the city can

“deliberate indifference” to

reasonably be said to have

the obvious consequence of

been deliberately indifferent

the policymakers’ choice –

to the need.

namely, a violation of a

specific constitutional or

statutory right. The high

I believe that a jury could reasonably

degree of predictability may

conclude that this record establishes such

also support an inference of

deliberate indifference because the

c a usa tion – th at th e

Borough’s training left Officer Snyder

municipality’s indifference

with no reasonable alternative to the use of

led directly to the very

deadly force. The Supreme Court

15

consequence that the police department, and all police

was so predictable. officers in the Borough were required to

familiarize themselves with it and attest to

Id. at 409-10.

having read it. It prescribes an official

We applied this teaching in Berg v. policy of “progressive force” for the

County of Allegheny, 219 F.3d 261 (3d Borough’s police, stating that “[t]he use of

Cir. 2000). There, we reviewed the force will be progressive in nature, and

District Court’s grant of summary may include verbal, physical force, the use

judgment in favor of the defendants in a of non-lethal weapons or any other means

suit alleging a violation of civil rights as a at the officer’s disposal, provided they are

result of the plaintiff’s arrest on an reasonable under the circumstances.” App.

erroneous warrant. Plaintiff argued that at 998a. Chief Zuger testified further that

the defendant county maintained a “flawed “[t]he policy of the Homestead Police

warrant creation practice and poor training Department is to use only the amount of

procedures.” Id. at 275 (internal quotation force which is necessary in making an

marks omitted). Warrants were generated arrest or subduing an attacker. In all

“based on a single datum – the criminal cases, this will be the minimum amount of

complaint number . . . [with] no other force that is necessary.” App. at 1001a

information [and] no check . . . to guard (emphasis added).10

against the kind of mistake [that was]

However, as the majority notes, the

made. Nor [were] there procedures that

Borough provided only guns to its officers.

would allow [an] officer . . . who suspects

It did not equip them with any non-lethal

an error to confirm that suspicion.” Id. We

weapons. Rather, an officer had to request

concluded that the “failure to provide

any non-lethal weapon he/she might wish

protective measures and failsafes . . .

to carry and the request had to be approved

seems comparable to ‘a failure to equip

by Zuger. If the request was approved, the

law enforcement officers with specific

officer then had to undergo additional

tools to handle recurring situations’” and

training with the new weapon and become

reversed the grant of summary judgment

certified to use it. App. at 986a-87a.

for the municipality. Id. at 277.

Although Chief Zuger was not asked about

B. training in lethal force, the fact that

An even more compelling prima

facie case of municipal liability under § 10

Indeed, a municipal

1983 was established here than in Berg.

policy that authorized and condoned the

Police Chief Zuger compiled the policy

use of deadly force when an officer

manual for the Boroug h’s po lice

reasonably believed non-lethal force to

department pursuant to his authority as

be sufficient would certainly run afoul of

police chief. App. at 984a. The manual

the Constitution. Cf. Canton, 489 U.S. at

contains the Borough’s official policy for

390 n.10.

16

officers were equipped with a gun and had in these cases to hear expert

to be trained in any approved non-lethal testimony that an arrestee

weapon they may have carried certainly would have been uninjured

supports the inference that the Borough if only the police had been

only trained officers in the use of lethal able to use disabling gas or

force unless the Borough approved an a capture net or a taser (or

individual request for a non-lethal weapon. even a larger number of

police officers) and then

It is obviously foreseeable that an

decide that a municipality is

officer who is equipped only with a lethal

liable because it failed to

weapon, and trained only in the use of

buy this equipment (or

lethal force, will sooner or later have to

increase its police force).

resort to lethal force in situations that

There can be reasonable

officer believes could be safely handled

debates about whether the

using only non-lethal force under the

Constitution also enacts a

Borough’s own “progressive force” policy.

code of criminal procedure,

This record therefore presents that “narrow

but we think it is clear that

range of circumstances, [where] the

the Constitution does not

violation of federal rights [is] a highly

enact a polic e

predictable consequence of a failure to

administrator’s equipment

equip law enforcement officers with

list.

specific tools to han dle recurring

situations.” Brown, 520 U.S. at 409.

My colleagues state that “we have Id. at 1150-51 (footnote omitted) (quoted

never recognized municipal liability for a in Maj. Op. at 27-28). However, defining

constitutional violation because of failure our inquiry in terms of whether the

to equip police officers with non-lethal Co nstitution creates an approved

weapons.” Maj. Op. at 27. I agree. “equipment list” for police is both

However, we have never before addressed misleading and counterproductive. That is

that precise issue. Accordingly, our failure simply not the issue, and that formulation

reject that theory of recovery is neither of the issue obfuscates our inquiry rather

relevant nor precedential. I am also far than advancing it. Given the duties of a

less impressed with the analysis of the police officer, it was certainly foreseeable

Court of Appeals for the Seventh Circuit that the Borough’s policy of equipping

in Plakas v. Drinski, 19 F.3d 1143 (7th officers only with guns and training them

Cir. 1994) than my colleagues. As the only in the use of deadly force would

majority notes, the court there stated: sooner or later result in the use of

unjustifiable deadly force.

We do not think it is wise

policy to permit every jury Moreover, Chief Zuger’s testimony

17

dispels the fanciful notion that a finding of training program.” Maj. Op. at 26-27.

liability here would potentially result in a However, plaintiff never argued that

constitutionally mandated “equipment liability should be imposed on the basis of

list.” He testified that an officer could a failure to train in the use of deadly force.

seek approval for “any” non-lethal Rather, plaintiff argues that the Borough

weapon, including mace, pepper spray, a should be liable because its policy of

baton, etc. 1020a (emphasis added). The requiring training only in using deadly

result is, therefore, not a mandated force and equipping officers only with a

equipment list, but a mandated alternative lethal weapon, caused Officer Snyder to

to using deadly force in those situations use lethal force even though he did not

where an officer does not believe it is think it reasonable or necessary to do so.

necessary to use deadly force. We must

Moreover, as I have already noted,

not forget that “[o]ne of the main

given the duties of a police officer, it does

purposes of nonlethal, temporarily

not require a “pattern of underlying

incapacitating devices such as pepper

constitutional violations” to alert the

spray is to give police effective options

Borough to the fact that its policies would

short of lethal force that can be used to

cause police to unnecessarily use deadly

take custody of an armed suspect who

force. Rather, as I have argued above, this

refuses to be lawfully arrested or

record satisfies the teachings of Brown

detained.” Gaddis v. Redford Township,

because plaintiffs have established that

364 F.3d 763, 774 (6th Cir. 2004).

“narrow range of circumstances, [where] a

M oreover, interpreting the Fourth

violation of federal rights may be a highly

Amendment as requiring municipalities to

predictable consequence of a failure to

provide reasonable alternatives to the use

equip law enforcement officers with

of deadly force imposes no undue burden.

specific tools to handle recurring

In fact, here, it would do nothing more

situations.” Brown, 520 U.S. at 409.

than effectuate the Borough’s own

Thus, even without a pattern of abuse,

announced policy of “progressive force.”

“t]he likelihood that the situation will

My colleagues imply that the recur and the predictability that an officer

Borough can not be liable under a failure lacking specific tools to handle that

to train theory because its police officers situation will violate citizens’ rights could

were properly trained in the use of deadly justify a finding that policymakers’

force. The majority states: “This evidence decision . . . reflected ‘deliberate

did not establish a lack of training on the indifference’ to the obvious consequence

use of deadly force that amounted to a of the policymakers’ choice.” Id.

deliberate indifference, nor does it

In Berg, we allowed municipal

demonstrate a pattern of underlying

liability under § 1983 because procedures

constitutional violations that should have

were inadequate to guard against someone

alerted [the Borough] to an inadequate

being arrested as the result of an

18

erroneously issued warrant and municipal

defendants “employed a design where the

slip of a finger could result in wrongful

arrest and imprisonment[.]” 219 F.3d at

277. Reckless indifference that causes the

fatal use of excessive force must surely be

as actionable as reckless indifference

resulting in “the slip of a finger” that

merely causes an arrest.11

II.

Thus, for the reasons I have set

forth above, I must respectfully dissent

from the majority opinion insofar as it

affirms the District Court’s grant of

judgment as a matter of law under Fed. R.

Civ. P. 50 for the Borough. I believe

plaintiff is entitled to a new trial solely

against the Borough, and I would remand

to the District Court for that purpose.

11

I also note that in Berg, we

did not express a concern that holding

municipalities liable for arrests that resulted

from nothing more than “the slip of a finger”

would result in a constitutionally mandated

set of procedures that municipalities would

have to follow when obtaining arrest

warrants.

19