Geraldine Johnson v. City of Philadelphia

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 15-2346

_______________

GERALDINE JOHNSON, as Admnistratrix of the Estate of

Kenyado D. Newsuan, Deceased Plaintiff,

Appellant

v.

CITY OF PHILADELPHIA, POLICE OFFICER THOMAS

DEMPSEY, Badge # 1577

_______________

On Appeal from the U.S. District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-14-cv-02331)

District Judge: Honorable William H. Yohn

_______________

Argued February 11, 2016

Before: FUENTES, KRAUSE, and ROTH, Circuit Judges

(Opinion Filed: September 20, 2016)

Armando A. Pandola, Jr., Esq. [ARGUED]

Alan E. Denenberg, Esq.

Abramson & Denenberg, P.C.

1315 Walnut St., 12th Floor

Philadelphia, PA 19107

Attorneys for Appellants

Craig R. Gottlieb, Esq. [ARGUED]

City of Philadelphia Law Department

17th Floor

1515 Arch Street

One Parkway

Philadelphia, PA 19102

Attorneys for Appellees

_______________

OPINION OF THE COURT

_______________

FUENTES, Circuit Judge:

Kenyado Newsuan was standing in the street, naked,

high on PCP, and yelling and flailing his arms. Philadelphia

police officer Thomas Dempsey arrived on the scene and,

without waiting for backup, ordered Newsuan to approach.

What happened next is a matter of some dispute, but what

happened at the end of the encounter is not: Newsuan

attacked Dempsey, slammed him into multiple cars, and tried

to remove Dempsey’s handgun. At that point, Dempsey shot

and killed Newsuan.

2

The administratrix of Newsuan’s estate sued Dempsey

and the City of Philadelphia under 42 U.S.C. § 1983 for using

unconstitutionally excessive force. The District Court

granted summary judgment to the defendants. On appeal,

Plaintiff argues that the shooting was unreasonable under the

Fourth Amendment because Dempsey unnecessarily initiated

a one-on-one confrontation with Newsuan that led to the

subsequent fatal altercation. Whatever the merits of that

liability theory in the abstract, we conclude that Newsuan’s

violent attack on officer Dempsey was a superseding cause

that severed any causal link between Dempsey’s initial

actions and his subsequent justified use of lethal force. We

will therefore affirm.

I. BACKGROUND

A. Factual Background

In the early morning hours of April 22, 2012, Officer

Thomas Dempsey of the City of Philadelphia Police

Department was on solo patrol in a radio car in North

Philadelphia. Dempsey was armed with a baton, a taser, and

a nine-millimeter Glock handgun. Around 2:00 a.m.,

Dempsey received a radio call that a naked man was standing

in the street in the 5800 block of North Mascher Street.

Dempsey and two other patrol officers responded to the call,

but found no one. Around 5:30 a.m., Dempsey responded to

another call about a naked man on the same block, but again

found no one.

3

At approximately 6:00 a.m., a passing motorist

informed Dempsey that a naked man was in the street at the

corner of North Mascher and Nedro Avenue. Dempsey

radioed in the information and drove down North Mascher to

the intersection. There, Dempsey saw a naked man, later

identified as Kenyado Newsuan, standing in front of a

residence at 5834 North Mascher.

Accounts diverge as to what happened next. The

record contains testimony from four eyewitnesses: Officer

Dempsey, Juan Cruz, Raimundo Rivera, and Newsuan’s

girlfriend, Christina La Torre.

i. Testimony of Officer Dempsey

Dempsey testified that as he crossed Nedro Avenue

into the 5800 block of North Mascher, he saw Newsuan

standing in the middle of the street. Dempsey estimated

Newsuan to be six feet tall and 220 pounds. As Dempsey

pulled to a stop, Newsuan began walking out of the street

toward a house (later determined to be La Torre’s residence).

Dempsey did not radio to dispatch that he had encountered

the subject or stopped his car. As Newsuan headed toward

the house, Dempsey exited the car with his taser in his hand

and told Newsuan to “come here.” 1 Newsuan began

screaming obscenities at Dempsey and “flailing his arms

around.” 2 Dempsey could see that Newsuan was completely

naked and had nothing in his hands. Dempsey told Newsuan

1

J.A. 102.

2

Id. 103.

4

to “[c]ome here” several more times, but Newsuan continued

up the walkway to the house. 3 Newsuan entered the house for

approximately two seconds and then emerged back onto the

walkway. He was still naked, and Dempsey could see that he

did not have a weapon.

Upon emerging from the house, Newsuan began

running toward Dempsey and yelling. Dempsey gave two

verbal commands to stop. When Newsuan was five feet

away, Dempsey fired his taser into Newsuan’s chest.

Newsuan kept coming forward and grabbed Dempsey’s shirt.

A violent struggle ensued. Newsuan struck Dempsey in the

head multiple times, threw Dempsey up against a parked van,

and then pushed him into a parked SUV. As they were

wrestling against the SUV, Newsuan reached for Dempsey’s

service weapon. Dempsey removed the gun from its holster,

wedged it between his body and Newsuan’s, and, from a

distance of no more than two inches, fired two shots into

Newsuan’s chest. Newsuan attempted to reach for the gun,

and Dempsey shot him again in the chest. Still grappling,

Newsuan reached for the gun again, and Dempsey shot him

again. Newsuan collapsed face down and died. La Torre

then emerged from the house screaming and crying;

according to Dempsey, this was the first time he encountered

her. Dempsey was taken to a hospital, treated for minor

injuries, and released the same night.

ii. Testimony of Juan Cruz

Cruz lived in a street-facing apartment on North

Mascher. At around 5:40 a.m., while Cruz was lying in bed,

3

Id. 104.

5

he heard a commotion between two people. He looked out

his window and saw Dempsey and Newsuan standing

approximately eight feet apart and “screaming at each

other.” 4 Newsuan “was approaching” Dempsey. 5 When

Newsuan closed within four feet of Dempsey, Dempsey shot

him with a taser. After being hit with the taser, Newsuan

“stopped, stuttered a little bit,” and then “just rushed”

Dempsey. 6 Newsuan lifted Dempsey up by his belt, began

“beating” Dempsey and “slamming” him onto the hood of the

squad car, and then pushed Dempsey against a parked

vehicle. 7 At that point “it looked like [Newsuan] was going

for” Dempsey’s gun. 8 Cruz heard a series of gunshots, and

Newsuan fell to the ground.

iii. Testimony of Raimundo Rivera

Like Cruz, Rivera also lived in a street-facing

apartment on North Mascher. In the early morning hours, he

heard yelling outside his apartment and what sounded like a

car door slamming. He also heard a man yelling, “I’m

Jehovah. The end is near.” 9 Rivera then heard (but did not

see) someone being tased. Rivera testified that he did not

hear “any statements or yelling or anything immediately

preceding the taser,” and he never heard Dempsey issue any

4

Id. 145.

5

Id.

6

Id. 146.

7

Id. 140, 146-47.

8

Id. 147.

9

Id. 167, 172.

6

commands to stop or get down on the ground. 10 Rivera got

up and went to the window, where he saw Newsuan

“completely naked, rushing over to the police officer.”11

Newsuan “slam[med] the officer against his patrol car and

grab[bed] him by the neck and start[ed] pummeling his head

against the car.” 12 Newsuan “reach[ed] for” Dempsey’s

13

gun. While Newsuan “had him by the neck,” Dempsey

unholstered the gun and shot Newsuan three times at close

range, at which point Newsuan fell to the ground. 14

iv. Testimony of Christina La Torre

La Torre testified that on the night of April 21,

Newsuan showed up at her house high on PCP 15 and acting

paranoid. Over the course of the night, Newsuan became

progressively more agitated, running out of the house and into

the street several times and yelling nonsensical phrases. At

some point around sunrise, Newsuan removed his clothes and

walked back onto North Mascher. Some minutes later,

Dempsey’s cruiser started coming up the block. La Torre,

who was standing near the doorway of her home, told

Newsuan to go inside to avoid arrest. Newsuan began

walking toward the house. According to La Torre, Dempsey

pulled up and asked her “what’s the problem.” 16 At this

point, Newsuan was “standing right there and trying to go

10

Id. 168, 175-76.

11

Id. 168.

12

Id.

13

Id.

14

Id. 169.

7

into the house.” 17 La Torre told Dempsey, “he’s on PCP” and

“he needs to be 302’d”—meaning, in police code, that

Newsuan needed to be involuntarily committed to a mental

health facility. 18 Dempsey told her, “don’t worry about it,

everything is under control.” 19 He also instructed her not to

let Newsuan into the house because there might be weapons

inside.

Dempsey began walking from the street toward the

house. As he did so, he said to Newsuan, “hey you, come

here.” 20 Newsuan “didn’t say anything” but just “star[ed] at”

Dempsey. 21 Dempsey walked up the path to the house and

repeated the command “to come towards him.” 22 According

to La Torre, Newsuan “just look[ed] at” her. 23 Dempsey

backed up, stepped down onto the pavement, and asked

15

PCP is the common abbreviation for phencyclidine, “a

controlled substance which causes hallucinations and serious

psychological disturbances.” Guilbeau v. W.W. Henry Co.,

85 F.3d 1149, 1164 n.41 (5th Cir. 1996) (citing R. SLOANE,

THE SLOANE-DORLAND ANNOTATED MEDICAL

LEGAL DICTIONARY 545 (1987)).

16

Id. 203.

17

Id.

18

Id.

19

Id.

20

Id. 204.

21

Id.

22

Id.

23

Id.

8

Newsuan if he could hear him. Newsuan “started walking”

toward Dempsey. 24 According to La Torre, “[a]s he started

approaching the police officer, [Dempsey] tased him.” 25 At

the time Dempsey tased him, Newsuan was not running at

Dempsey, but rather “walking in response to the officer

telling him to come here.” 26

Upon being tased, Newsuan’s “body started

convulging [sic], like shaking.” 27 Newsuan reached up and

pulled the taser prongs from his body, at which point

Dempsey drew his gun and began backing away from

Newsuan. Newsuan was “just staring” at Dempsey. 28 La

Torre ran back into the house, grabbed her phone, and began

calling Newsuan’s mother and brother. Through the window,

she could see Dempsey with his gun still drawn, but could not

see Newsuan. La Torre became frightened and ran into her

bedroom, meaning that she did not see the physical

altercation between Dempsey and Newsuan. While in the

bedroom, she heard four gunshots in rapid succession. She

went back out to the street and saw Newsuan lying in the

street. Newsuan died shortly thereafter.

24

Id.

25

Id.

26

Id.

27

Id.

28

Id. 205.

9

B. Procedural Background

Plaintiff Geraldine Johnson, as administratrix of

Kenyado Newsuan’s estate, brought this action under 42

U.S.C. § 1983, alleging that Officer Dempsey used excessive

force against Newsuan in violation of the Fourth Amendment

and that the City of Philadelphia was liable for Dempsey’s

actions under Monell v. Department of Social Services, 29

Plaintiff also brought state-law claims for assault and battery

and wrongful death. After full discovery, the defendants

moved for summary judgment.

The District Court granted summary judgment to the

defendants. It held that there was no genuine material dispute

that Officer Dempsey reasonably used deadly force to defend

himself from Newsuan’s attack. In response to Plaintiff’s

argument that Dempsey should have retreated and awaited

backup rather than confront Newsuan, the court held that

Newsuan’s violent attack, and particularly his attempt to take

Dempsey’s gun, severed any causal link between Dempsey’s

initial actions at the scene and his subsequent use of lethal

defensive force. Because Plaintiff’s state-law claims were

either contingent on or required a higher showing than the

excessive force claim, the District Court dismissed them as

well. This appeal followed.

29

436 U.S. 658 (1978).

10

II. DISCUSSION 30

A claim that a police officer used excessive force

during a seizure is “properly analyzed under the Fourth

Amendment’s ‘objective reasonableness’ standard.” 31 There

is no dispute that Officer Dempsey “seized” Newsuan for

Fourth Amendment purposes when he shot and killed him. 32

The only question is whether Officer Dempsey’s use of force

was objectively reasonable under the circumstances. 33 At the

summary judgment stage, once we identify the relevant facts

and draw all inferences in the non-movant’s favor, the

reasonableness of an officer’s actions “is a pure question of

law.” 34

30

The District Court had subject matter jurisdiction pursuant

to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28

U.S.C. § 1291. “[O]ur review of a grant of summary

judgment is plenary, and in making that review we use the

same standard as a district court: whether there are genuine

issues of material fact precluding entry of summary

judgment.” Acumed LLC v. Advanced Surgical Servs., Inc.,

561 F.3d 199, 211 (3d Cir. 2009). A fact is “material” if it

could affect the outcome, and an issue of material fact is

“genuine” if the evidence is sufficient to permit a reasonable

jury to return a verdict for the non-moving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986).

31

Graham v. Connor, 490 U.S. 386, 388 (1989).

32

Tennessee v. Garner, 471 U.S. 1, 7 (1985).

33

See Abraham v. Raso, 183 F.3d 279, 290 (3d Cir. 1999)

(quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)).

34

Scott v. Harris, 550 U.S. 372, 381 n.8 (2007).

11

Before proceeding, it is necessary to clarify our Fourth

Amendment standard in deadly-force cases. Following the

Supreme Court’s lead in Tennessee v. Garner, 35 we have

previously suggested that an officer’s use of deadly force is

justified under the Fourth Amendment only when (1) the

officer has reason to believe that the suspect poses a

“significant threat of death or serious physical injury to the

officer or others,” and (2) deadly force is necessary to prevent

the suspect’s escape or serious injury to others. 36 In Scott v.

Harris, however, the Supreme Court clarified that “Garner

did not establish a magical on/off switch that triggers rigid

preconditions whenever an officer’s actions constitute ‘deadly

force.’” 37 Rather, Garner was “simply an application of the

Fourth Amendment’s ‘reasonableness’ test to the use of a

particular type of force in a particular situation.” 38 Scott

abrogates our use of special standards in deadly-force cases

and reinstates “reasonableness” as the ultimate—and only—

inquiry. “Whether or not [an officer’s] actions constituted

application of ‘deadly force,’ all that matters is whether [the

officer’s] actions were reasonable.” 39 This is not to say that

the considerations enumerated in Garner are irrelevant to the

reasonableness analysis; to the contrary, in many cases,

including this one, a proper assessment of the threat of injury

35

471 U.S. at 3.

36

See Abraham, 183 F.3d at 289.

37

550 U.S. 372, 382 (2007).

38

Id. (internal citations omitted).

39

Id. at 383; see also Acosta v. Hill, 504 F.3d 1323, 1324 (9th

Cir. 2007) (under Scott, “there is no special Fourth

Amendment standard for unconstitutional deadly force”).

12

or the risk of flight is crucial to identifying the magnitude of

the governmental interests at stake. But such considerations

are simply the means by which we approach the ultimate

inquiry, not constitutional requirements in their own right.

The reasonableness of a seizure is assessed in light of

the totality of the circumstances. 40 We analyze this question

“from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight,” making

“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.” 41

We begin with a proposition that can scarcely be

disputed: once Newsuan began reaching for Dempsey’s gun,

Dempsey was justified in using deadly force to defend

himself. Each of the three witnesses to the fight (Cruz,

Rivera, and Dempsey) testified that Newsuan rushed at

Dempsey, began violently grappling with him, and slammed

Dempsey into multiple cars. 42 Dempsey and Rivera testified

that Newsuan struck Dempsey in the head multiple times. All

three witnesses agree that Newsuan then attempted to grab

Dempsey’s gun out of its holster. At that point there was a

serious risk that Newsuan would kill Dempsey, and no

40

Abraham, 183 F.3d at 289.

41

Graham, 490 U.S. at 396-97.

42

The fourth witness, La Torre, had retreated to her bedroom

and did not see the altercation.

13

reasonable juror could conclude that it was unreasonable for

Dempsey to deploy lethal force in response. 43

This conclusion, however, does not end the inquiry. A

proper Fourth Amendment analysis requires us to assess not

only the reasonableness of Dempsey’s actions at the precise

moment of the shooting, but the “totality of circumstances”

leading up to the shooting. 44 Building out from this principle,

Plaintiff argues that even if Dempsey was justified in using

43

Plaintiff claims that Dempsey was carrying his handgun in

a department-issued holster that makes it difficult for

someone who is not the officer to remove the gun. Whatever

the precise likelihood that Newsuan would have been able to

remove the gun, the unrebutted testimony is that Newsuan

was violently assaulting Dempsey and striking him repeatedly

in the head, despite having been shot point-blank with a taser.

Given that the two men were already engaged in a life-

threatening physical struggle, Newsuan’s attempt to wrest

away Dempsey’s weapon was ample justification for the use

of defensive deadly force in that instant.

44

See Abraham, 183 F.3d at 292 (recognizing that “events

prior to a seizure” should “be considered in analyzing the

reasonableness of the seizure”); see also id. at 291-92 (“[W]e

want to express our disagreement with those courts which

have held that analysis of ‘reasonableness’ under the Fourth

Amendment requires excluding any evidence of events

preceding the actual seizure. . . . [W]e do not see how these

cases can reconcile the Supreme Court’s rule requiring

examination of the ‘totality of the circumstances’ with a rigid

rule that excludes all context and causes prior to the moment

the seizure is finally accomplished.”).

14

deadly force after he was attacked, the seizure as a whole was

unreasonable because Dempsey should never have confronted

Newsuan in the first place. In support of this argument,

Plaintiff cites a Philadelphia Police Department directive that

instructs officers who encounter severely mentally disabled

persons (including persons experiencing drug-induced

psychosis) to wait for back-up, to attempt to de-escalate the

situation through conversation, and to retreat rather than

resort to force. 45 Plaintiff points out that Dempsey knew or

should have known that Newsuan was obviously disturbed; 46

45

Philadelphia Police Directive 136 instructs patrol officers

who encounter a severely mentally disabled person to, among

other things, “[a]ssess the situation, attempt to de-escalate the

situation through communication, take defensive measures,

and attempt to maintain a zone of safety”; “[r]equest adequate

back up”; “[r]equest a supervisor”; “avoid any immediate

aggressive action unless there is an imminent threat to life or

physical danger to the [subject], the police, or other civilians

present”; and “[a]ttempt to place themselves in a position that

does not require taking unnecessary or overly aggressive

actions.” J.A. 24-25.

46

Officer Dempsey testified that on each of the five previous

occasions he had encountered a naked person in the street, the

person had been high on PCP. He could tell these persons

were under the influence of PCP because he knew that,

“[w]hen someone does PCP they get hot inside. . . . So they

take off their clothing and they go outside, and then the

appearance of being high. That’s what leads me to believe

they’re on PCP.” J.A. 94. Dempsey could not recall whether

he suspected that Newsuan was under the influence of PCP,

but acknowledged that the radio description of Newsuan’s

behavior “fits with the symptoms of PCP.” Id. 101.

15

that Dempsey knew Newsuan was naked and unarmed; and

that Dempsey also knew that he had responded to two prior

calls to the same area without receiving any indication that

the subject was endangering or threatening people. Plaintiff

asserts that, under these circumstances, it was unreasonable

for Dempsey to flout departmental policy by initiating a one-

on-one encounter with Newsuan.

We do not automatically discount Plaintiff’s Fourth

Amendment argument or the two presumptions on which it

rests: that official police department policies may be

considered among other things in the reasonableness inquiry47

and that a “totality of the circumstances” analysis should

account for whether the officer’s own reckless or deliberate

47

Our sister circuits have split on the question of whether

police department policies may be used to assess whether a

seizure is reasonable under the Fourth Amendment. Compare

Stamps v. Town of Framingham, 813 F.3d 27, 32 n.4 (1st Cir.

2016) (police training and procedures “do not, of course,

establish the constitutional standard but may be relevant to

the Fourth Amendment analysis”), and Drummond ex rel.

Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir.

2003) (“Although . . . training materials are not dispositive,

we may certainly consider a police department’s own

guidelines when evaluating whether a particular use of force

is constitutionally unreasonable.”), with Tanberg v. Sholtis,

401 F.3d 1151, 1163-64 (10th Cir. 2005) (“That an arrest

violated police department procedures does not make it more

or less likely that the arrest implicates the Fourth

Amendment, and evidence of the violation is therefore

irrelevant.”).

16

conduct unreasonably created the need to use deadly force. 48

But there is no need for us to take up such constitutional

considerations here, because Plaintiff’s claim founders on a

more fundamental tort requirement: proximate causation.

Whether or not Dempsey acted unreasonably at the

outset of his encounter with Newsuan, Plaintiff must still

prove that Dempsey’s allegedly unconstitutional actions

proximately caused Newsuan’s death. 49 Under ordinary tort

principles, a superseding cause breaks the chain of proximate

causation. 50 In Bodine v. Warwick, we recognized that this

principle limits Section 1983 liability for an officer’s use of

force even where the officer’s initial actions violate the

Fourth Amendment:

Suppose that three police officers go to a

suspect’s house to execute an arrest warrant and

that they [enter illegally] . . . . Once inside, they

48

See Abraham, 183 F.3d at 292 (“[W]e think all of the

events transpiring during the officers’ pursuit of [the suspect]

can be considered in evaluating the reasonableness of [the

officer’s] shooting.”); Jiron v. City of Lakewood, 392 F.3d

410, 415 (10th Cir. 2004) (“The reasonableness of the use of

force depends not only on whether the officers were in danger

at the precise moment that they used force, but also on

whether the officers’ own reckless or deliberate conduct

during the seizure unreasonably created the need to use such

force.” (internal quotation omitted)).

49

See Martinez v. California, 444 U.S. 277, 285 (1980).

50

Lamont v. New Jersey, 637 F.3d 177, 185-86 (3d Cir.

2011); Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir. 1993).

17

encounter the suspect, identify themselves,

show him the warrant, and tell him that they are

placing him under arrest. The suspect, however,

breaks away, shoots and kills two of the

officers, and is preparing to shoot the third

officer when that officer disarms the suspect

and in the process injures him. Is the third

officer necessarily liable for the harm caused to

the suspect on the theory that the illegal entry . .

. rendered any subsequent use of force

unlawful? The obvious answer is “no.” The

suspect’s conduct would constitute a

“superseding” cause that would limit the

officer’s liability. 51

While there is no precise test for determining when a

civilian’s intervening acts will constitute a superseding cause

of his own injury, relevant considerations include whether the

harm actually suffered differs in kind from the harm that

would ordinarily have resulted from the officer’s initial

actions; whether the civilian’s intervening acts are a

reasonably foreseeable response to the officer’s initial

actions; whether the civilian’s intervening acts are themselves

inherently wrongful or illegal; and the culpability of the

civilian’s intervening acts. 52

Although proximate causation is generally a question

of fact, 53 it “becomes an issue of law when there is no

51

Id (citations omitted).

52

See Restatement (Second) of Torts § 442 (1965).

53

Rivas v. City of Passaic, 365 F.3d 181, 193 (3d Cir. 2004).

18

evidence from which a jury could reasonably find the

required proximate, causal nexus between the careless act and

the resulting injuries.” 54 Here, we conclude as a matter of

law that Newsuan’s violent, precipitate, and illegal attack on

Officer Dempsey severed any causal connection between

Dempsey’s initial actions and his subsequent use of deadly

force during the struggle in the street. Whatever harms we

may expect to ordinarily flow from an officer’s failure to

await backup when confronted with a mentally disturbed

individual, they do not include the inevitability that the

officer will be rushed, choked, slammed into vehicles, and

forcibly dispossessed of his service weapon. We therefore

have little trouble concluding that Newsuan’s life-threatening

assault, coupled with his attempt to gain control of

Dempsey’s gun, was the direct cause of his death.

Before continuing on, however, we sound a note of

caution. The question of proximate causation in this case is

made straightforward by the exceptional circumstances

presented—namely, a sudden, unexpected attack that

instantly forced the officer into a defensive fight for his life.

As discussed above, that rupture in the chain of events,

coupled with the extraordinary violence of Newsuan’s

assault, makes the Fourth Amendment reasonableness

analysis similarly straightforward. Given the extreme facts of

this case, our opinion should not be misread to broadly

immunize police officers from Fourth Amendment liability

whenever a mentally disturbed person threatens an officer’s

physical safety. Depending on the severity and immediacy of

54

Port Auth. of N.Y. & N.J. v. Arcadian Corp., 189 F.3d 305,

318 (3d Cir. 1999) (quoting Gaines-Tabb v. ICI Explosives,

USA, Inc., 160 F.3d 613, 620 (10th Cir. 1998)).

19

the threat and any potential risk to public safety posed by an

officer’s delayed action, it may be appropriate for an officer

to retreat or await backup when encountering a mentally

disturbed individual. It may also be appropriate for the

officer to attempt to de-escalate an encounter to eliminate the

need for force or to reduce the amount of force necessary to

control an individual. 55 Nor should it be assumed that

mentally disturbed persons are so inherently unpredictable

that their reactions will always sever the chain of causation

between an officer’s initial actions and a subsequent use of

force. If a plaintiff produces competent evidence that persons

who have certain illnesses or who are under the influence of

certain substances are likely to respond to particular police

actions in a particular way, that may be sufficient to create a

jury issue on causation. And of course, nothing we say today

should discourage police departments and municipalities from

devising and rigorously enforcing policies to make tragic

events like this one less likely. 56 The facts of this case,

55

See Martin v. City of Broadview Heights, 712 F.3d 951,

958 (6th Cir. 2013) (reasonable jury could conclude that

officers should have de-escalated encounter with distraught

individual through verbal intervention rather than physical

force); Deorle v. Rutherford, 272 F.3d 1272, 1282-83 (9th

Cir. 2001) (holding that a civilian’s mental status must be

considered in determining the reasonableness of a use of

force, and observing that, with respect to emotionally

disturbed persons, “a heightened use of less-than-lethal force

will usually be helpful in bringing a dangerous situation to a

swift end”).

56

See Megan Pauly, How Police Officers Are (or Aren’t)

Trained in Mental Health, The Atlantic, (Oct. 11, 2013)

http://www.theatlantic.com/health/archive/2013/10/how-

20

however, are extraordinary. Whatever the Fourth

Amendment requires of officers encountering emotionally or

mentally disturbed individuals, it does not oblige an officer to

passively endure a life-threatening physical assault, regardless

of the assailant’s mental state.

Finally, Plaintiff offers an alternative basis for Fourth

Amendment liability. In addition to faulting Dempsey for the

manner in which he initiated the encounter, Plaintiff suggests

that it was also unreasonable for Officer Dempsey to shoot

Newsuan with his taser during the lead-up to the fight. This

contention is buttressed by La Torre’s testimony that

Newsuan was simply walking toward Dempsey in compliance

with Dempsey’s orders when Dempsey tased him, as well as

by Rivera’s testimony that he never heard Dempsey issue any

commands before tasing Newsuan. But even if we were to

deem this particular use of force unreasonable, the requisite

causal connection between the taser strike and Dempsey’s

later use of deadly force would still be lacking.

According to La Torre, after Dempsey shot Newsuan

with the taser, Newsuan reached up and pulled the taser

prongs from his body. Dempsey then drew his gun and

began backing away from Newsuan, while Newsuan “just

star[ed]” at him. 57 La Torre ran back inside and called

Newsuan’s mother and brother on the phone. The last thing

police-officers-are-or-aren-t-trained-in-mental-health/280485/

(last visited August 16, 2016) (discussing prevalence,

success, and challenges of so-called Crisis Intervention

Training for police officers).

57

J.A. 205.

21

she saw from the window was Dempsey standing with his

gun drawn. This testimony establishes that Newsuan was

essentially unfazed by the taser strike. According to

La Torre, Newsuan simply removed the taser prongs and

stared at Dempsey in a continued standoff that lasted long

enough for La Torre to place two phone calls from inside the

house. Therefore, even after drawing all inferences in

Plaintiff’s favor, no reasonable juror could conclude that

Newsuan’s subsequent physical attack was an involuntary or

foreseeable defensive response to the taser strike described by

La Torre.

More importantly, La Torre did not see any part of the

physical fight, including who initiated it or how Dempsey and

Newsuan went from a gun-drawn standoff, as recounted by

La Torre, to a close-quarters fight. What this means is that

the only evidence concerning how Newsuan and Dempsey

came into physical contact is the unrebutted testimony of

Dempsey, Cruz, and Rivera. Each of them testified that

Newsuan rushed at Dempsey unprovoked and that the taser

barely slowed Newsuan in his attempt to grab Dempsey.

Each of them also testified that Newsuan slammed Dempsey

into parked cars and reached for Dempsey’s gun. In the

absence of a competing account, those undisputed actions are

superseding causes that absolve Dempsey of any liability for

his initial conduct.

III. CONCLUSION

For the foregoing reasons, we conclude that Office

Dempsey’s use of deadly force was reasonable under the

circumstances, and that any allegedly unreasonable decisions

he made during his initial encounter with Newsuan did not

22

proximately cause Newsuan’s death. Our dismissal of

Plaintiff’s Fourth Amendment claim requires the dismissal of

her remaining Monell and state-law claims as well. 58

We will therefore affirm the judgment of the District

Court.

58

See Pl. Br. 33-34 (“Plaintiff agrees that if there is no claim

against Officer Dempsey under the Fourth Amendment then

Plaintiff has no right to assert its state claims against

Dempsey and its Monell claim against the City.”); Grazier ex

rel. White v. City of Phila., 328 F.3d 120, 124 (3d Cir. 2003)

(municipality cannot be held liable on a Monell claim absent

an underlying constitutional violation); Renk v. City of

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

Pennsylvania law, the “reasonableness of the force used in

making the arrest determines whether the police officer’s

conduct constitutes an assault and battery”); Sunderland v.

R.A. Barlow Homebuilders, 791 A.2d 384, 390-91 (Pa. Super.

Ct. 2002) (“A wrongful death action is derivative of the injury

which would have supported the decedent’s own cause of

action and is dependent upon the decedent’s cause of action

being viable at the time of death.”).

23

Johnson v. City of Philadelphia

No. 15-2346

_________________________________________________

ROTH, Circuit Judge, dissenting:

While the members of the majority may be satisfied

that Newsuan’s attack on Officer Dempsey was sufficient to

sever any causal chain, I believe that Newsuan’s reaction was,

unfortunately, all too foreseeable. Directive 136—the police

regulation that Officer Dempsey supposedly violated—states

that its main objective “is to aid and protect the interests of

the [mentally disturbed person], innocent bystanders, and

family members in the immediate area, without

compromising the safety of all parties concerned, including

the police officers. This is best accomplished by DE-

ESCALATING THE INCIDENT” (emphasis in original). 1

The purpose of regulations like Directive 136 is clear—to

reduce the risk of a deadly confrontation with an extremely

vulnerable population. That such a regulation is necessary to

reduce the risk of a deadly confrontation demonstrates that

1

While this directive is cited as “Directive 136” by both

parties, as of January 9, 2015, the directive appears under the

number 10.9. J.A. 21–29 (being cited as Directive 136);

Severely Mentally Disabled Persons, Philadelphia Police

Department (Jan. 9, 2015), available at

https://www.phillypolice.com/assets/directives/D10.9-

SeverelyMentallyDisabledPersons.pdf (being cited as

Directive 10.9).

1

deadly confrontations are a foreseeable result of ignoring the

regulation.

Viewing the facts before us in a light most favorable to

the non-movant, Officer Dempsey, ignoring the Philadelphia

Police Department’s calculated use of caps lock, escalated the

incident. Facing a naked, unarmed man who by all accounts

had not been reported to the police as an “immediate threat to

life or physical danger” to anyone, Officer Dempsey

approached Newsuan and beckoned him to “come here,”

without backup, in violation of police regulation. By

Dempsey’s own account, his approach was not made to

apprehend and secure Newsuan, but was made because

Dempsey “wanted to see if [Newsuan] was in some type of

distress. He obviously needed some type of care.” 2 By

knowingly violating a police department regulation designed

to keep mentally disturbed individuals safe, Dempsey set into

motion the confrontation that ultimately led to Newsuan’s

death – a confrontation whose foreseeability was the impetus

for the establishment of Directive 136.

Our limited precedent on the issue of superseding

causes in excessive force cases is instructive. In Lamont v.

New Jersey, we held that an individual’s quick hand

movement—perceived by officers as drawing a weapon—

occurring after officers had violated police procedures to

pursue the individual, constituted a superseding cause. 3 In so

holding, we noted that a contrary holding would “tend to

deter police officers ‘from approaching and detaining

2

J.A. at 102-03.

3

637 F.3d 177, 186 (2011).

2

potentially violent suspects.’” 4 But the officers in Lamont

were pursuing an individual who, they expected, was armed

and potentially dangerous. The officers were so informed

when they chose to violate police procedures in pursuing him.

Such cannot be said of Officer Dempsey here, as Newsuan

was clearly unarmed and had not been exhibiting violent

conduct prior to their interaction. There is an important

distinction between these two types of cases—one in which

an officer, through his conduct, creates the situation that calls

for the use of force, and one in which the officer’s

misconduct, while perhaps factually linked to the eventual use

of force, does not contribute to the “dangerous situation.” 5

Additionally, holding that Newsuan’s behavior was not a

superseding cause would not create the perverse deterrent

effects we feared in Lamont: to the contrary, deterring police

officers from approaching mentally disturbed suspects in a

way that may compromise the safety of either the officer or

the individual is an end we should seek to achieve, rather than

avoid.

I am also not persuaded that Newsuan’s attack was an

unforeseeable result of his being tased by Officer Dempsey.

Taking the facts in the light most favorable to the non-

movant, Dempsey was aware that Newsuan was on PCP at

the time of their encounter. The Philadelphia Police

Department teaches its officers that a taser strike may fail to

4

Id. (quoting Hundley v. District of Columbia, 494 F.3d

1097, 1105 (D.C. Cir. 2007)).

5

See Estate of Starks v. Enyart, 5 F.3d 230 (7th Cir. 1993)

(officer who jumped in front of a speeding car, then used

deadly force to stop driver, would not be entitled to qualified

immunity).

3

subdue a suspect on PCP due to the drug’s effects on pain

tolerance. 6 It was therefore foreseeable to Officer Dempsey

that his taser would be ineffective against Newsuan. The

most favorable account of the facts prior to Newsuan’s being

tased is that Newsuan was “approaching” Officer Dempsey—

presumably in response to Dempsey’s request that Newsuan

“come here.” A jury could reasonably conclude that Officer

Dempsey, by firing his taser, took an “immediate aggressive

action” in violation of police department regulations and in

doing so escalated the situation and created a risk of harm to

both himself and to Newsuan.

The death of individuals with mental health problems

at the hands of the police continues to occur across the

country. 7 The first line of defense against these incidents is

the establishment of police regulations designed to prevent

interactions between police officers and mentally disabled

people from escalating into deadly confrontations. Declaring

that an officer who disregards such a regulation has not

proximately caused a violent confrontation that the regulation

is in place to prevent renders the regulation toothless. Given

the available factual accounts of the events leading up to

Newsuan’s eventual death, including the possible disregard of

a regulation that was designed to guard against violent

confrontations, I cannot say that “there is no evidence from

which a jury could reasonably find the required proximate,

6

J.A. 244.

7

E.g., Kate Mather and James Queally, More Than a Third of

People Shot by L.A. Police Last Year Were Mentally Ill,

LAPD Report Finds, L.A. Times (Mar. 1, 2016),

http://www.latimes.com/local/lanow/la-me-ln-lapd-use-of-

force-report-20160301-story.html.

4

causal nexus between the careless act and the resulting

injuries.” 8

For the above reasons, I respectfully dissent. I would

reverse the judgment of the District Court and remand this

case for further proceedings.

8

Port Auth. of N.Y. & N.J. v. Arcadian Corp., 189 F.3d 305,

318 (3d Cir. 1999) (quoting Gaines-Tabb v. ICI Explosives,

USA, Inc., 160 F.3d 613, 620 (10th Cir. 1998)).

5