Lena Davenport v. Borough of Homestead

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-3892

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LENA DAVENPORT, an adult individual

v.

BOROUGH OF HOMESTEAD, a Municipal Corporation;

CITY OF PITTSBURGH, a Municipal corporation; IAN

STRANG, individually and in his official capacities as a

Police Officer of the Borough of Homestead;

JAMES ILGENFRITZ, individually and his official

capacities as a Police Officer of the Borough of Homestead;

LOUIS SCHWEITZER, individually and in his official

capacities as a Police Officer of the City of Pittsburgh;

STEPHEN MATAKOVICH, individually and in his official

capacities as a Police Officer of the City of Pittsburgh;

CALVIN KENNEDY, individually and in his official

capacities as a Police Officer of the City of Pittsburgh;

THOMAS GORECKI, individually and in his official

capacities as a Police Officer of the City of Pittsburgh, and;

NATHAN HARPER, Commander, in his official capacity as

a Chief of Police of the City of Pittsburgh;

JEFFREY DESIMONE, in his official capacity as Chief of

Police of Borough of Homestead, and; IGOR BOYKO,

individually and in his official capacity

of a Police Officer of the City of Pittsburgh

Louis Schweitzer; Stephen Matakovich;

Calvin Kennedy; Thomas Gorecki,

Appellants

______

On Appeal from the United States District Court

for the Western District of Pennsylvania

(W.D. Pa. No. 2-13-cv-00250)

District Judge: Honorable David S. Cercone

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Argued: May 24, 2017

Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.

(Opinion Filed: August 29, 2017)

Bryan Campbell

Law Offices of Bryan Campbell

310 Grant Street, Suite 2620

Pittsburgh, PA 15219

Allison N. Genard

Marshall Dennehey Warner Coleman & Goggin

600 Grant Street

2900 U.S. Steel Tower

Pittsburgh, PA 15219

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John J. Hare

Shane Haselbarth [ARGUED]

Marshall Dennehey Warner Coleman & Goggin

2000 Market Street, Suite 2300

Philadelphia, PA 19103

Counsel for Appellants

J. Kerrington Lewis, Sr. [ARGUED]

Lewis Lewis & Reilly

1040 Fifth Avenue

Pittsburgh, PA 15219

Counsel for Appellee

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OPINION OF THE COURT

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FISHER, Circuit Judge.

On an early Sunday morning in January 2013, Lena

Davenport was riding in the front passenger seat of a vehicle

driven by her son Donald Burris, Jr. After running a red light

and refusing to pull over, Burris led police officers on a

nearly five-mile low speed pursuit into the City of Pittsburgh.

As the pursuit entered an area with high pedestrian traffic,

City of Pittsburgh Police Officers Louis Schweitzer, Stephen

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Matakovich, Calvin Kennedy, and Thomas Gorecki each

opened fire on Burris’s vehicle. Davenport was struck by one

of the officers’ bullets. She filed this suit under 42 U.S.C. §

1983 against the officers and others alleging, inter alia, that

the officers used excessive force in violation of both the

Fourth Amendment and the Fourteenth Amendment’s Due

Process Clause. The District Court granted summary

judgment on the basis of qualified immunity in favor of many

of the defendants but denied it as to Schweitzer, Matakovich,

Kennedy, and Gorecki, finding that their alleged conduct

violated clearly established law. We will dismiss the appeal in

part as to Gorecki and reverse in part as to Schweitzer,

Matakovich, and Kennedy.

I

At about 1:38 a.m. on Sunday, January 13, 2013,

Donald Burris, Jr. ran a red light in Homestead, Pennsylvania.

Burris’s mother, Lena Davenport, was the only passenger in

his car. When a Homestead police officer attempted to stop

the car, Burris did not comply. Instead, a pursuit began,

heading into the City of Pittsburgh. As Burris entered

Pittsburgh’s South Side neighborhood on East Carson Street,

several Pittsburgh police officers joined the pursuit. About

1:42 a.m., as the pursuit reached a busy area, the Sergeant of

the Pittsburgh Police Department called it off.

Despite the Sergeant’s orders, officers deployed spike-

strips near the intersection of East Carson Street and 24th

Street. It is undisputed that until reaching the 24th Street

intersection, the pursuit did not jeopardize the safety of other

motorists or pedestrians. However, in an attempt to avoid the

spike-strips, Burris swerved between East Carson Street’s

inbound and outbound lanes.

As these events transpired, Officers Schweitzer,

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Matakovich, Kennedy, and Gorecki were working approved

off-duty security jobs at bars on East Carson Street. They

heard about the pursuit through police radio communications.

Near the 17th Street intersection, Schweitzer was the

first to shoot at Burris’s car, opening fire after observing the

vehicle swerve between lanes of traffic and drive toward him.

He fired at the front of the vehicle three times and once more

at the vehicle’s rear as it passed his position. At some point

near this intersection, a bullet grazed a pedestrian’s back.

Between the 16th and 15th Street intersections, after

attempting to clear the street of pedestrians, Matakovich

looked up and saw Burris’s car heading toward him from the

opposite lane. He shot at the vehicle four times and claims he

jumped out of the way to avoid being struck. Kennedy, who

was standing near Matakovich, fired once at the vehicle.

Burris again swerved between lanes and, upon reaching the

15th Street intersection, side-swiped a parked car.

As the pursuit approached the 14th Street intersection,

Burris continued to swerve, hitting a car in the outbound lane

and then returning to the inbound lane. Near the 13th Street

intersection, at about 1:44 a.m., the pursuit ended when Burris

collided with a taxicab. At or around the same time, Gorecki

fired two shots directly into the driver compartment of the

vehicle. The parties dispute whether Gorecki fired before or

after the final collision. The taxicab’s dash-camera footage

shows Gorecki’s conduct, but it is not clear from the video

when he actually discharged his firearm. Minutes later, at

1:47 a.m, paramedics arrived. They found Davenport on the

floor of the vehicle’s passenger compartment, having

sustained a single gunshot wound near her right eye. It is

unclear which officer’s bullet actually struck Davenport.

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At no time did the pursuit exceed forty-five miles per

hour. Additionally, a forensic expert’s evaluation of the

vehicle’s bullet holes indicates that one bullet was fired

directly into the passenger compartment and another was

fired after the vehicle’s airbags deployed. Importantly, it is

unclear whether the airbags deployed before the taxicab

collision.

Relevant to this appeal, Davenport brought suit under

42 U.S.C. § 1983 alleging that Schweitzer, Matakovich,

Kennedy, and Gorecki violated her Fourth Amendment right

to be free from excessive force and her Fourteenth

Amendment right to due process. The officers moved for

summary judgment on the basis of qualified immunity. The

District Court identified two factual disputes that, in its view,

required sending the claims against those officers to trial. The

first was whether the officers intentionally or indiscriminately

fired into the passenger compartment of Burris’s vehicle with

knowledge of Davenport’s presence therein. And the second

was whether the officers fired into the vehicle even though it

posed little or no danger to themselves or others. A

reasonable jury, the court held, could determine that, on

January 13, 2013, the officers violated clearly established

law. Davenport v. Borough of Homestead, 2016 WL

5661733, at *19-22 (W.D. Pa. Sept. 30, 2016). The four

officers appealed.

II

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

1331. The collateral order doctrine provides us with

jurisdiction to review the District Court’s denial of the

officers’ claims of qualified immunity under 28 U.S.C. §

1291, but only “to the extent that it turns on an issue of law.”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

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Insofar as the District Court’s order pertains to

Schweitzer, Matakovich, and Kennedy, “we possess

jurisdiction to review whether the set of facts identified by the

district court is sufficient to establish a violation of a clearly

established constitutional right.” Dougherty v. Sch. Dist. of

Phila., 772 F.3d 979, 986 (3d Cir. 2014) (internal quotation

marks omitted). However, we lack jurisdiction to review the

order insofar as it pertains to Gorecki because he challenges

the District Court’s determination that the “pretrial record sets

forth a ‘genuine’ issue of fact” for the jury. Johnson v. Jones,

515 U.S. 304, 319-20 (1995); see also Monteiro v. City of

Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006) (“[W]hen

qualified immunity depends on disputed issues of fact, those

issues must be determined by the jury.”). Relying on the

taxicab’s dash-camera footage, Gorecki argues that the

District Court should have concluded that no reasonable jury

could find that he discharged his firearm into Burris’s vehicle

after the pursuit ended. Appellants’ Br. 17. And Gorecki’s

legal challenges assume the absence of this otherwise

disputed fact. Because we are unable to address the factual

challenge about when Gorecki discharged his firearm at

Burris’s vehicle at this stage of the proceedings, we are

precluded from addressing the derivative legal challenges.

See Johnson, 515 U.S. at 317 (“[A]n interlocutory appeal

concerning this kind of issue in a sense makes unwise use of

appellate courts’ time, by forcing them to decide in the

context of a less developed record, an issue very similar to the

one they may well decide anyway later, on a record that will

permit a better decision.”).

To the extent we have jurisdiction, we exercise plenary

review over an appeal from a denial of summary judgment

based on a lack of qualified immunity. Zaloga v. Borough of

Moosic, 841 F.3d 170, 174 n.3 (3d Cir. 2016). We will

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reverse if “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). To determine if there is a genuine

dispute of material fact, we “view the underlying facts and all

reasonable inferences therefrom in the light most favorable to

the party opposing the motion[.]” Dougherty, 772 F.3d at 986

(internal quotation marks omitted).

III

Before reaching the merits of Schweitzer, Matakovich,

and Kennedy’s qualified immunity defense, we must first

address an error committed by the District Court—the court’s

independent analysis of Davenport’s Fourteenth Amendment

claims. See Davenport, 2016 WL 5661733, at *14-15. The

Supreme Court has instructed that “all claims that law

enforcement officers have used excessive force—deadly or

not—in the course of an arrest, investigatory stop, or other

‘seizure’ of a free citizen should be analyzed under the Fourth

Amendment and its ‘reasonableness’ standard, rather than

under a ‘substantive due process’ approach.” Graham v.

Connor, 490 U.S. 386, 395 (1989). Therefore, an independent

substantive due process analysis of an excessive force claim

is inappropriate where, as here, the plaintiff’s claim is

covered by the Fourth Amendment. See County of

Sacramento v. Lewis, 523 U.S. 833, 843 (1998).

The Supreme Court has “express[ed] no view” on

whether a passenger in Davenport’s position may recover

under a Fourth Amendment theory. Plumhoff v. Rickard, 134

S. Ct. 2012, 2022 n.4 (2014). And the federal appellate courts

appear divided on the issue. Compare, e.g., Lytle v. Bexar

Cty., 560 F.3d 404, 410 (5th Cir. 2009) (suggesting yes),

Vaughan v. Cox, 343 F.3d 1323, 1328-29 (11th Cir. 2003)

(same), Fisher v. City of Memphis, 234 F.3d 312, 318-19 (6th

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Cir. 2000) (same), and Pittman v. Nelms, 87 F.3d 116, 120

(4th Cir. 1996) (same), with, e.g., Medeiros v. O’Connell, 150

F.3d 164, 169 (2d Cir. 1998) (suggesting no in the context of

a hostage situation), and Landol-Rivera v. Cruz Cosme, 906

F.2d 791, 794-96 (1st Cir. 1990) (same). See also Carabajal

v. City of Cheyenne, 847 F.3d 1203, 1212 (10th Cir. 2017)

(declining to address the issue and resolving the case on other

grounds). Nevertheless, the majority of circuits have

suggested that a passenger in Davenport’s position may seek

relief under the Fourth Amendment; those circuits that have

suggested otherwise reached their decisions on this issue

before the Supreme Court decided Brendlin v. California, 551

U.S. 249 (2007).

In Brendlin, the Supreme Court held that in

intentionally stopping a vehicle, an officer subjects not only

the driver, but also the vehicle’s passengers to a Fourth

Amendment seizure. 551 U.S. at 254-56. It also made clear

that an officer’s knowledge of a passenger’s presence in the

vehicle is not dispositive because “an unintended person may

be the object of the detention, so long as the detention is

willful and not merely the consequence of an unknowing act.”

Id. at 254 (alterations and internal quotation marks omitted).

And in Brower v. County of Inyo, the Supreme Court

cautioned courts not to “draw too fine a line” in “determining

whether the means that terminates the freedom of movement

is the very means that the government intended.” 489 U.S.

593, 598 (1989). Accordingly, even if the officers’ intended

application of force would have only incidentally seized

Davenport, because her freedom of movement was terminated

“by the very instrumentality set in motion or put in place in

order to achieve” Burris’s and her detention, id. at 599, there

is no set of facts that precludes a finding of a Fourth

Amendment seizure. Today we join the majority of circuits in

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holding that a passenger shot by an officer during the course

of a vehicular pursuit may seek relief under the Fourth

Amendment. Because Davenport may do so, the Fourth

Amendment, “not the more generalized notion of ‘substantive

due process,’ must be the guide for analyzing these claims.”

Graham, 490 U.S. at 395. Consequently, the District Court

erred in independently analyzing Davenport’s Fourth and

Fourteenth Amendment claims.

IV

“The doctrine of qualified immunity shields officials

from civil liability so long as their conduct ‘does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.’” Mullenix v. Luna,

136 S. Ct. 305, 308 (2015) (per curiam) (quoting Pearson v.

Callahan, 555 U.S. 223, 231 (2009)). In resolving questions

of qualified immunity, we conduct a two-part inquiry. First,

“[t]aken in the light most favorable to the party asserting the

injury, do the facts alleged show the officer’s conduct

violated a constitutional right?” Saucier v. Katz, 533 U.S.

194, 201 (2001). Second, we consider whether, in light of the

specific context of the case, “the right was clearly

established.” Id. Although we need not address these prongs

in any particular order, Pearson, 555 U.S. at 236, we exercise

our discretion to address both “[b]ecause we believe this case

will clarify and elaborate upon our prior jurisprudence in

important and necessary ways.” Williams v. Sec’y Pa. Dep’t

of Corr., 848 F.3d 549, 558 (3d Cir. 2017) (internal quotation

marks omitted).

A

We first consider whether Schweitzer, Matakovich,

and Kennedy’s alleged conduct violated the rights secured to

Davenport by the Fourth Amendment. The Fourth

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Amendment requires that a seizure be objectively reasonable.

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

reasonableness involves “a careful balancing of the nature

and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing governmental

interests at stake.” Id. at 396 (internal quotation marks

omitted). The government has an interest in ensuring public

safety, and a fleeing vehicle may pose a threat to that interest.

Scott v. Harris, 550 U.S. 372, 383 (2007). However, because

our analysis “requires careful attention to the facts and

circumstances of each particular case,” Graham, 490 U.S. at

396, the fact that a vehicle is in flight does not necessarily

render an officer’s use of deadly force objectively reasonable.

The question is “whether the totality of the circumstances

justified a particular sort of . . . seizure.” Tennessee v. Garner,

471 U.S. 1, 8-9 (1985). We evaluate each officer’s conduct

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

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

that “officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is necessary

in a particular situation.” Graham, 490 U.S. at 396-97.

Based on Davenport’s version of facts, the District

Court concluded that a reasonable jury could find that the

officers intentionally shot at Davenport and that the pursuit

posed no serious threat of immediate harm to others. This was

error, as these assertions are “blatantly contradicted by the

record.” Scott, 550 U.S. at 380. First, video evidence

indisputably shows a heavy pedestrian presence during the

course of the pursuit. And second, throughout the pursuit

Burris continuously swerved between inbound and outbound

lanes, which ultimately led to his colliding with three other

vehicles. Considering the serious threat of immediate harm to

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others, no reasonable jury could conclude that the officers

fired at the vehicle for any reason other than to eliminate that

threat.

Schweitzer shot at the vehicle with the knowledge that

Burris refused to yield to officers’ continued pursuit and

swerved between lanes in an area with high pedestrian traffic.

Matakovich and Kennedy shot at the vehicle with the

additional knowledge that Burris continued the dangerous

vehicular pursuit despite sustaining police fire. Given the

serious threat of immediate harm to East Carson Street’s

many pedestrians, even if the officers knew that a passenger

was in the vehicle, their conduct was objectively reasonable

as a matter of law. See id. (In “weighing the perhaps lesser

probability of injuring or killing numerous bystanders against

the perhaps larger probability of injuring or killing a single

person,” courts must “take into account . . . the number of

lives at risk.”). As such, Schweitzer, Matakovich, and

Kennedy are entitled to summary judgment because they did

not violate Davenport’s Fourth Amendment rights.

B

There is an additional and distinct basis on which we

must reverse the District Court’s denial of qualified immunity

to Schweitzer, Matakovich, and Kennedy—their alleged

conduct did not violate clearly established law. The crux of

the “clearly established” analysis “is whether officers have

‘fair notice’ that they are acting unconstitutionally.” Mullenix,

136 S. Ct. at 314. In other words, an officer is not entitled to

qualified immunity if “at the time of the challenged conduct,

the contours of [the] right [were] sufficiently clear that every

reasonable official would have understood that what he [was]

doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011) (alteration and internal quotation marks omitted).

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“We do not require a case directly on point, but existing

precedent must have placed the statutory or constitutional

question beyond debate.” Id. “The dispositive question is

whether the violative nature of particular conduct is clearly

established. This inquiry must be undertaken in light of the

specific context of the case, not as a broad general

proposition.” Mullenix, 136 S. Ct. at 308 (citation and internal

quotation marks omitted). Accordingly, the specific question

presented by this case is whether, on January 13, 2013, the

law clearly established that an officer who, in an attempt to

eliminate the serious threat of immediate harm to others

created by a vehicle’s flight shoots the vehicle’s passenger,

violates that passenger’s rights under the Fourth Amendment.

We hold that it did not.

The District Court concluded that Tennessee v. Garner

clearly established that the officers’ alleged conduct was

unlawful. See Davenport, 2016 WL 5661733, at *20. Garner

held that a “police officer may not seize an unarmed,

nondangerous suspect by shooting him dead.” 471 U.S. at 11.

The Supreme Court, however, has applied Garner’s “general”

test for excessive force in only the “obvious” case. Brosseau

v. Haugen, 543 U.S. 194, 199 (2004) (per curiam). And

courts have found “obvious” cases only in the absence of a

serious threat of immediate harm to others. See, e.g., Lytle,

560 F.3d at 417 (finding an obvious case where an officer

shot a passenger in a vehicle without a sufficient threat of

harm to others); Adams v. Speers, 473 F.3d 989, 991-94 (9th

Cir. 2007) (finding same where, without a sufficient threat of

harm to others, an officer shot a fleeing suspect on the

highway and by using deadly force actually created a serious

hazard for himself and the suspect); Smith v. Cupp, 430 F.3d

766, 773, 776 (6th Cir. 2005) (finding same where, without a

sufficient threat of harm to others, an officer shot an

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intoxicated suspect who took control of a patrol car in a

parking lot); Vaughan, 343 F.3d at 1331 (finding same where,

without a sufficient threat of harm to others, an officer shot

suspects who were merely evading arrest).

In concluding that this was such an “obvious” case, the

District Court improperly ignored the serious threat of

immediate harm to others posed by Burris’s flight. The

District Court justified limiting its analysis to the threat of

harm posed by Davenport’s conduct by citing Plumhoff v.

Rickard for the proposition that “Fourth Amendment rights

are personal rights that may not be vicariously asserted.”

Davenport, 2016 WL 5661733, at *21. But acknowledging

the threat of harm posed by Burris’s flight neither enhances

nor diminishes Davenport’s Fourth Amendment rights.

Rather, as discussed above, see Part IV-A, supra, it is a

necessary factor of our “objective reasonableness” analysis.

Given the serious threat of immediate harm to others that

Schweitzer, Matakovich, and Kennedy sought to eliminate,

Garner does not clearly establish their alleged conduct

violated Davenport’s constitutional rights.

The Supreme Court has never addressed the rights of a

passenger involved in a dangerous vehicular pursuit. And

while, in the absence of applicable Supreme Court precedent,

we may consider “a robust consensus of cases of persuasive

authority,” al-Kidd, 563 U.S. at 742 (internal quotation marks

omitted), Davenport cites no precedent from this Circuit, or

any other, that is on point. Given this near absence of cases,

we cannot conclude that Schweitzer, Matakovich, and

Kennedy acted in a plainly incompetent manner when they

attempted to address the serious threat of immediate harm to

others posed by Burris’s flight. See Ziglar v. Abbasi, 137 S.

Ct. 1843, 1867 (2017) (“[Q]ualified immunity protects all but

the plainly incompetent or those who knowingly violate the

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law.” (internal quotation marks omitted)).

* * *

For the reasons stated, the judgment of the District

Court will be reversed in part and the case remanded with

instructions to enter summary judgment on the basis of

qualified immunity in favor of Schweitzer, Matakovich, and

Kennedy. The appeal will be dismissed in part for lack of

jurisdiction with respect to Gorecki.

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