Monte Blair v. City of Pittsburgh

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-4169

_____________

MONTE D. BLAIR,

Appellant

v.

CITY OF PITTSBURGH; CITY OF PITTSBURGH BUREAU OF POLICE;

REGINA MCDONALD; NATE HARPER; OFFICER CHRISTOPHER KERTIS;

OFFICER ANDREW BAKER; DETECTIVE SCOTT EVANS;

COMMANDER THOMAS STANGRECKI

On Appeal from the United States District Court for the

Western District of Pennsylvania

(District Court No: 2-14-cv-01473)

District Judge: Honorable Mark A. Kearney

Submitted under Third Circuit LAR 34.1(a)

on September 11, 2017

Before: VANASKIE, RENDELL, and FISHER, Circuit Judges

(Opinion filed: September 28, 2017)

O P I N I O N*

RENDELL, Circuit Judge:

Monte Blair asserts a variety of § 1983 claims arising from a late-night encounter

he had with officers in Pittsburgh, and his subsequent arrest and prosecution. The District

Court granted the officers qualified immunity on Blair’s excessive force claim, and also

granted the Defendants’ Motion for Summary Judgment on Blair’s false arrest, malicious

prosecution, and Monell claims. Because we agree with the District Court’s ruling, we

will affirm.

I. Facts

While on patrol in their marked police van around 2:00 A.M. on a Sunday

morning in 2012, Officers Christopher Kertis and Andrew Baker heard gunshots nearby.

Officer Kertis drove toward the shooting. As Kertis drove toward the scene, both officers

saw and heard gunshots coming from a dark-colored SUV. They briefly lost sight of the

SUV as they drove toward it through a parking lot, but they continued to hear gunshots.

After exiting the parking lot and turning onto an alleyway, Kertis hit his vehicle’s

brakes because he saw an SUV—the one they believed had been involved in the shots

they heard earlier—driving toward them. Kertis exited the van, but Baker remained in the

vehicle. As the SUV drove at the police van, Baker pulled his gun out and fired two or

*

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

does not constitute binding precedent.

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three shots from the window. The SUV continued driving straight toward the police van.

It then maneuvered around the police van.

As the SUV was passing the police van, Kertis saw the driver with something in

his hand which he said appeared to be a gun. He then saw a muzzle flash and heard a

gunshot from the SUV. Kertis shot back at the SUV, and continued to fire as it sped

away. Officer Baker exited the van and also shot at the SUV as it drove away. The

Officers testified that they continued shooting at the car even after it passed them because

of public safety concerns, namely that whoever had just shot at police officers continued

to pose a danger to the public.

Paramedics then arrived at the scene of the first shooting—the shooting that the

Officers had heard while on patrol, leading them down the alleyway—and found Ronald

Thornhill with a gunshot wound in his arm. Paramedics transported Thornhill to the

hospital, where detectives met with him. According to the detectives, during the course of

the interview Thornhill identified Blair as the shooter.

The officers prepared a criminal complaint alleging that (1) Blair had shot Ronald

Thornhill, and (2) Blair had shot at the police officers while charging them in his vehicle.

The criminal complaint accused Blair of aggravated assault and attempted homicide

against Kertis, Baker, and Thornhill. It also accused Blair of two counts of assault of a

law enforcement officer and one count of carrying a firearm without a license. Based on

this criminal complaint, a magisterial district judge issued an arrest warrant for Blair, and

Blair was arrested.

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Thereafter, Thornhill denied ever implicating Blair in his shooting. The

Commonwealth withdrew the aggravated assault and attempted homicide charges related

to the Thornhill shooting. But a Judge found Blair guilty of two counts of aggravated

assault based on the encounter with the officers in the alleyway, and on charges relating

to prohibited possession of a firearm. However, he found Blair not guilty of the

remaining charges.

II. Analysis1

(1) Excessive Force

Blair first claims that Officers Baker and Kertis employed excessive force by

firing at his vehicle, as it drove away, in violation of his Fourth Amendment rights.

The District Court properly granted the Officers qualified immunity on this claim.

Qualified immunity is appropriate if the officers’ conduct “does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Berg v. Cty of Allegheny, 219 F.3d 261, 272 (3d Cir. 2000) (internal quotation

marks omitted). “[E]xisting precedent must have placed the statutory or constitutional

question confronted by the official beyond debate.” Plumhoff v. Rickard, 134 S. Ct. 2012,

2023 (2014) (emphasis added) (internal quotation marks omitted).

Our precedent instructs that the Officers’ conduct did not violate Blair’s clearly

established constitutional rights. In a number of cases, the Supreme Court has granted

1

We have appellate jurisdiction under 28 U.S.C. § 1291. The District Court had

jurisdiction under 28 U.S.C. §§ 1331 & 1343. We exercise plenary review over the

District Court’s grant of summary judgment. Fields v. City of Philadelphia, 862 F.3d 353,

357 (3d Cir. 2017).

4

qualified immunity when officers shot and killed fleeing criminal suspects, when there

were grounds to believe that the suspect posed an actual serious threat to public safety

based on the suspect’s conduct. Plumhoff, 134 S. Ct. at 2021–22 (conduct occurred in

2004); Brosseau v. Haugen, 546 U.S. 194, 194–98 (2004) (per curiam); Mullenix v. Luna,

136 S. Ct. 305, 309–10 (2015) (per curiam) (conduct occurred in 2010).2

Here, the Officers heard gunshots nearby. They pursued those shots, only to see an

SUV driving at their marked police van. One of the Officers saw the vehicle’s driver

firing a gun at the Officers. Based on these facts, there were clearly grounds to believe

that Blair posed a threat to public safety, an even greater threat than in other cases where

the officers were granted qualified immunity. Blair does not distinguish the facts of his

case from those where qualified immunity was granted such that we could find the

Officers’ conduct violated his rights in a manner that was “beyond debate.” Ashcroft v.

Al-Kidd, 563 U.S. 731, 741 (2011).3

Blair likens his case to Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999), where we

did not grant an officer qualified immunity (or even discuss the issue). There, an off-duty

police officer pursued Abraham into a mall parking lot as Abraham fled from Macy’s,

where he had stolen some clothing. Id. at 283. Abraham hit another car as he was backing

2

Blair has not shown that there emerged either “controlling authority” or “a robust

consensus of cases of persuasive authority” contrary to these cases such that they do not

control our analysis. See Plumhoff, 134 S. Ct. at 2023 (internal quotation marks omitted).

3

Blair does state that in Brosseau and Mullenix the officers had initiated a traffic stop

prior to opening fire. But this does not change our analysis, which centers on the public

safety risk in the specific context the officers confronted.

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out of his parking space; as he began driving forward, the officer shot and killed him. Id.

at 283–86.

That case is unlike Blair’s. To start, Abraham preceded Mullenix, Brosseau, and

Plumhoff, in which the Supreme Court developed the contours of qualified immunity for

excessive force claims against officers shooting fleeing suspects. Moreover, Abraham did

not even discuss the issue of qualified immunity. Further, Abraham involved an off-duty

officer’s pursuit of a shoplifting suspect who had no gun: it was not at all clear that

Abraham posed any threat to anyone at all. Here, while investigating shots fired, the

Officers saw a vehicle approaching them down an alleyway, and saw Blair firing a gun at

them. Clearly, the level of threat to public safety in Blair’s case is not analogous to the

threat presented in Abraham.4 Thus, the District Court properly granted the Officers

qualified immunity.

(2) False Arrest

Blair pursues a claim for false arrest, because he was arrested, but ultimately

charges were dropped against him for the shooting of Robert Thornhill. Blair contends on

appeal that though he was convicted of some charges for which he was arrested, because

other charges were dropped, he has a viable false arrest claim. He misunderstands the

4

Blair’s reliance on Zion v. Nassan, 556 F. App’x 103 (3d Cir. 2014) is similarly

unavailing. That case is not precedential, and has no binding effect. Further, the threat

level presented by the suspect in that case was also much lower than the threat the

officers perceived that Blair presented: the suspect there was being followed for a broken

taillight, had pulled over his vehicle, and was apparently not armed. Id. at 104–05.

Blair further relies on Tennesse v. Garner, 471 U.S. 1, 11 (1985), where the Court

explained that it is not always permissible to use deadly force to prevent the escape of a

felony suspect. But that case emphasized that its limitations applied when there was no

immediate threat to the officer or others. Id. Here, there was such a threat.

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law. As the District Court explained, a defendant is insulated from § 1983 liability for

false arrest where probable cause existed as to any offense that could have been charged

under the circumstances. Johnson v. Knorr, 477 F.3d 75, 85 (3d Cir. 2007). Not only was

there probable cause for the charge of aggravated assault against the Officers; Blair was,

in fact, convicted of those aggravated assaults. He has no false arrest claim.

(3) Malicious Prosecution

Blair argues that the District Court erred in granting summary judgment to the

Defendants on his malicious prosecution claims. While he seems to argue that all the

charges were maliciously prosecuted, with the exception of firearms charges, Blair’s

primary claim is that the Government did not have probable cause to bring any charges

related to Thornhill’s shooting, and that in an affidavit of probable cause, an officer

misrepresented Thornhill’s statement implicating Blair.

To bring a malicious prosecution claim, a defendant must establish: “(1) the

defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff's

favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted

maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the

plaintiff suffered deprivation of liberty consistent with the concept of seizure as a

consequence of a legal proceeding.” Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009)

(en banc).

(i) Attempted Murder/Aggravated Assault of Officers & Assault on an

Officer

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As to the charges arising from his assault of the Officers, Blair’s claim fails on the

second prong: favorable termination. A malicious prosecution claim cannot be predicated

on an underlying criminal proceeding which terminated “in a manner not indicative of the

innocence of the accused.” Id. at 187. Blair was convicted of aggravated assault, and so

the verdict did not indicate his innocence on that charge.

However, the state court judge found Blair not guilty of attempted murder of the

Officers or assault on a police officer. So, there was a mixed verdict. When that is the

case, we examine the “entire criminal proceeding” and determine whether the judgment

indicates “the plaintiff’s innocence of the alleged misconduct underlying the offenses

charged.” Id. at 188. The findings of the state court do not indicate that Blair was

innocent of the alleged misconduct underlying those charges, namely his attack of the

Officers. On the contrary, Blair was found guilty of aggravated assault of the Officers.

Thus, malicious prosecution claim on the charges related to his attack on the officers

fails.

(ii) Attempted Murder/Aggravated Assault of Thornhill

Blair contends that he can nonetheless bring a malicious prosecution claim for the

charges the Commonwealth withdrew—attempted homicide/aggravated assault of

Thornhill. However, even though those charges terminated favorably for Blair, his claim

fails because probable cause existed to charge him for the other offenses related to his

assault on the officers.

When there are multiple charges, as here, if the charges are “totally intertwined,”

probable cause for one offense defeats a malicious prosecution claim for all offenses.

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Johnson, 477 F.3d at 82 n.9; cf. Startzell v. City of Phila., 533 F.3d 183, 204 n.14 (3d Cir.

2008) (“We need not address whether there was probable cause with respect to the

remaining charges . . . for the establishment of probable cause as to any one charge is

sufficient to defeat Appellants’ Fourth Amendment claims.”).

We agree with the District Court that the charges at issue here were “intertwined”

as contemplated in Johnson. Johnson did allow a plaintiff to bring malicious prosecution

claims despite the existence of probable cause for some the charged offenses. But that

case spoke to “bifurcated” conduct, where additional spurious charges were tacked on or

charged after the original arrest. 477 F.3d at 82 n.9. Here, there was no such bifurcated

conduct. Probable cause as to some of the charges was beyond dispute. Thus, Blair’s

claim fails.5

(4) Monell liability

Blair’s claim against the City of Pittsburgh fails because there was no underlying

violation of his constitutional rights, see Mulholland v. Gov’t Cty. of Berks, 706 F.3d 227,

238 n.15 (3d Cir. 2013), let alone a pattern of such violations.

III. Conclusion

The District Court correctly granted the Officers qualified immunity, and granted

the Defendants’ Motion for Summary Judgment. We will thus affirm that Court’s ruling.

5

Further, Blair has not alleged, as he was required to do to avoid Johnson’s bar to his

claim, that “the additional charges for which there might not have been probable cause . .

. resulted in additional restrictions on his liberty beyond those attributable to the

prosecution on the [] charges for which there was probable cause.” Johnson, 477 F.3d at

86; Gallo v. City of Phila., 161 F.3d 217, 222 (3d Cir. 1998) (“A plaintiff asserting a

malicious prosecution claim must show some deprivation of liberty consistent with the

concept of seizure.” (internal quotation marks omitted)).

9