Will El v. City of Pittsburgh

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 18-2856

______

WILL EL, an adult individual;

BEYSHAUD EL, an adult individual

v.

CITY OF PITTSBURGH, a municipal Corporation;

REYNE KACSUTA, Individually, and in her official

capacities, as a police officer of the City of Pittsburgh;

FRANK WELLING, Individually, and in his official

capacities, as a police officer of the City of Pittsburgh; RYAN

WARNOCK, Individually, and in his official capacities, as a

police officer of the City of Pittsburgh; DISTRICT

ATTORNEY ALLEGHENY COUNTY

Frank Welling;

Reyne Kacsuta;

Ryan Warnock,

Appellants

______

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-15-cv-00834)

District Judge: Honorable Nora B. Fischer

______

Argued April 24, 2020

Before: PHIPPS, RENDELL and FISHER, Circuit Judges.

(Filed: September 16, 2020)

Yvonne S. Hilton

Julie E. Koren [ARGUED]

City of Pittsburgh

Department of Law

414 Grant Street

313 City County Building

Pittsburgh, PA 15219

Counsel for Appellants

Todd J. Hollis [ARGUED]

Hollis Law Offices

428 Forbes Avenue, Suite 505

Pittsburgh, PA 15219

Counsel for Appellees

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

On a summer day in 2013, brothers Will and Beyshaud

El left a corner store in their neighborhood and encountered

Pittsburgh Police Lieutenant Reyne Kacsuta. The men were

unarmed and were not committing a crime. Nor did they flee

2

or resist Lieutenant Kacsuta or the five other officers who

quickly joined her. Nevertheless, the incident ended with

Officer Frank Welling slamming Will against a building and

taking him to the ground, and Officer Ryan Warnock

deploying his taser on Beyshaud.

The brothers were convicted in state court of summary

disorderly conduct and summary harassment. They then sued

Lieutenant Kacsuta and Officers Welling and Warnock in

federal court, asserting Fourth Amendment excessive force

claims and state law assault and battery claims. The officers

moved for summary judgment, which the District Court

granted in part and denied in part. The officers appeal. We will

reverse the denial of summary judgment as to Lieutenant

Kacsuta and affirm the denial of summary judgment as to

Officer Welling. Because we lack jurisdiction to consider

whether the District Court erred in denying the motion as to

Officer Warnock, we will dismiss the appeal in part.

On July 2, 2013, Lieutenant Kacsuta was in her cruiser

outside a convenience store in the Homewood neighborhood

of Pittsburgh. She saw Beyshaud and Will El leaving the store

and thought that Beyshaud was holding “a green foil object.”

El v. City of Pittsburgh, No. CV 15-834, 2018 WL 3707420, at

*3 (W.D. Pa. Aug. 3, 2018). Lieutenant Kacsuta suspected that

the object was synthetic marijuana, which reportedly was being

sold out of the store. She drove up to the brothers and asked to

speak to them, but they declined and walked away. With her

suspicions further heightened, she turned her car around to

follow them.

Knowing that Officers Warnock and Welling were

nearby, Lieutenant Kacsuta called for backup. Then she got out

3

of her car and approached the brothers. They obeyed her

direction to sit down on the stoop of a vacant storefront, and,

at her request, Will gave her his identification. Will then

emptied his pockets onto the sidewalk and directed Beyshaud

to do the same because he wanted Lieutenant Kacsuta to know

that “they did not have anything on them and they were not

doing anything.” Id.

The brothers did not have synthetic marijuana, but

Lieutenant Kacsuta thought they had left the store with a

tobacco product. Although Beyshaud was 18 years old, he did

not have identification—and without proof of his age,

Lieutenant Kacsuta suspected he might have made an underage

tobacco purchase. (Will’s identification, which he had showed

the lieutenant, confirmed he was over 18.)

Officers Warnock and Welling arrived in less than two

minutes. Id. at *4. Neither of them knew why the Els were

detained, and Lieutenant Kacsuta did not direct them to make

sure the brothers remained seated. “Ultimately, five . . .

officers [including Warnock and Welling] reported to the

scene.” Id. A dashboard camera in one of the squad cars

recorded video of what happened next. The camera captured

clear images, and the resulting video has been exceedingly

helpful as we have studied the events at the heart of this case.

See JA72 (Video). The camera’s microphone picked up only

muffled and partial audio, see id.—but those involved

subsequently testified about was said, and their testimony does

not conflict with one another or with the video.

With the Els sitting on the storefront stoop, Lieutenant

Kacsuta picked up Will’s identification from the ground,

looked at it, and tossed it back on the ground. Beyshaud

reached for his brother’s identification, but Lieutenant Kacsuta

4

stepped on it, preventing him from picking it up. The Els

complained that they were being harassed.

Will testified that in response to his comment about

being harassed, Officer Welling said, “[D]o you want to know

what it feels like to be harassed?” Id. Will stood up to, as he

testified, “make sure the lieutenant heard what [Officer

Welling] said to me.” JA360. The video shows Will talking to

Officer Welling as each of the men gestured with a pointed

forefinger. The events that happened next cascaded quickly

and were over in about ten seconds.

Will “took one or two small steps in the direction of

Lieutenant Kacsuta and Officer Warnock.” El, 2018 WL

3707420, at *4. Officer Welling then “grabbed Will . . . by his

wrist and neck and slammed him back into the wall of the

vacant storefront . . . and on to the pavement.” Id. Beyshaud,

who had still been sitting on the stoop, “immediately stood up,

turned towards Officer Welling, and attempted to punch [him]

and otherwise defend his brother.” Id. Officer Warnock reacted

to Beyshaud’s swing by “deploy[ing] his taser into

Beyshaud[’s] side . . . , causing Beyshaud . . . to fall to the

ground.” Id.

When the dust settled, both brothers were lying on the

ground. They did not resist as six officers handcuffed and

arrested them. Beyshaud was taken to the hospital and then to

jail. Will went directly to jail and, after he was released, visited

the hospital emergency department for lower back pain. He

was told he had a contusion on his hip.

The Allegheny County District Attorney initially

charged Will and Beyshaud with aggravated assault of a police

officer but later amended the charges to summary disorderly

conduct against Will, 18 Pa. Cons. Stat. § 5503(a)(4), and

summary harassment against Beyshaud, id. § 2709(a)(1). The

5

brothers were tried jointly in the Allegheny County Court of

Common Pleas without a jury and were convicted. Neither

appealed his conviction, so the Common Pleas judgments are

valid and final.

In 2015, the Els sued the City of Pittsburgh and several

police officers, including the three appellants: Lieutenant

Kacsuta, Officer Welling, and Officer Warnock. The

complaint asserted a 42 U.S.C. § 1983 claim for excessive

force in violation of the Fourth Amendment and a state law

claim for assault and battery. 1 In early 2018, after discovery,

the defendants filed a motion for summary judgment. On the

§ 1983 excessive force claim, the defendants argued that they

did not use excessive force, and if they did, they were entitled

to qualified immunity. On the state law assault and battery

claim, the defendants argued that for the same reasons the force

was not excessive, there was no assault and battery. The

District Court granted the motion as to the state law claim

against Lieutenant Kacsuta, and granted it in part and denied it

in part as to the § 1983 excessive force claim against her.

Conversely, the District Court denied the motion as to the state

law claim against Officer Warnock but granted it as to the

§ 1983 excessive force claim against him. Finally, the District

Court denied the motion as to both claims against Officer

Welling. The officers appeal.

1

The Els also brought a claim against the city for failure

to properly train, supervise, and reprimand Lieutenant Kacsuta.

The District Court granted summary judgment for the city on

this claim, El, 2018 WL 3707420, at *14-15, and it is not at

issue in this appeal.

6

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

1331, 1343, and 1367. We have jurisdiction under 28 U.S.C. §

1291 to consider “‘a district court’s denial of a claim of

qualified immunity, to the extent that it turns on an issue of

law,” because it “is an appealable final decision’ under the

collateral order doctrine.” 2 Ziccardi v. City of Philadelphia,

288 F.3d 57, 61 (3d Cir. 2002) (quoting Mitchell v. Forsyth,

472 U.S. 511, 530 (1985)). When we review a denial of

summary judgment based on qualified immunity and there is a

video in the record “capturing the events in question,” we must

accept the trial court’s factual determinations unless they are

“blatantly contradicted” by the video. Scott v. Harris, 550 U.S.

372, 378, 380 (2007); see also Blaylock, 504 F.3d at 409

(where a district court “determines ‘that there is sufficient

record evidence to support a set of facts under which there

would be no immunity,’ we must accept that set of facts on

interlocutory review” (quoting Schieber v. City of

Philadelphia, 320 F.3d 409, 415 (3d Cir. 2003))). “Once we

accept the set of facts that the District Court found to be

sufficiently supported, . . . we may review the District Court’s

conclusion that the defendants would not be immune from

liability if those facts were proved at trial.” Id. Our review of

these questions of law is plenary. Schieber, 320 F.3d at 415.

2

The collateral order doctrine provides that an order is

final and appealable under 28 U.S.C. § 1291 “if it: ‘(1)

conclusively determine[s] the disputed question, (2) resolve[s]

an important issue completely separate from the merits of the

action, and (3) [is] effectively unreviewable on appeal from a

final judgment.’” Blaylock v. City of Philadelphia, 504 F.3d

405, 408 (3d Cir. 2007) (alterations in original) (quoting

Johnson v. Jones, 515 U.S. 304, 310 (1995)).

7

This appeal also requires us to consider our own

jurisdiction, which we always have jurisdiction to do and

which we review on a plenary basis. In re Lipitor Antitrust

Litig., 855 F.3d 126, 142 (3d Cir. 2017), as amended (Apr. 19,

2017) (quoting United States v. Ruiz, 536 U.S. 622, 628

(2002)).

We lack jurisdiction to consider Officer Warnock’s

argument that the District Court erred in denying his summary

judgment motion on the state law claim. In the District Court,

Officer Warnock and the other officers argued that they were

entitled to summary judgment on the state law claim because

the force they used was “reasonable and necessary and did not

rise to the level of assault and battery.” District Ct. Docket 106

at 2, ¶ 7. They invoked neither Pennsylvania official immunity

under 42 Pa. Cons. Stat. § 8546 nor qualified immunity. 3 A

denial of qualified immunity would have been an appealable

final order, Ziccardi, 288 F.3d at 61, and we have similarly

held that a denial of state immunity is an appealable final order

under the collateral order doctrine, Rivas v. City of Passaic,

365 F.3d 181, 193 (3d Cir. 2004). But, because there was no

denial of federal or state immunity, there was no immediately

appealable order. We therefore lack jurisdiction to address the

denial of summary judgment on the state law claim.

3

Had the officers raised qualified immunity as a defense

to the state-law claims, the argument would have failed,

because qualified immunity is a defense only to violations of

federal law under § 1983. Immunity from state law claims is

governed by the state’s immunity doctrine. In re City of Phila.

Litig., 49 F.3d 945, 957 (3d Cir. 1995).

8

“Police officers, embodying the authority of the state,

are liable under [42 U.S.C.] § 1983 when they violate

someone’s constitutional rights, unless they are protected by

qualified immunity.” Curley v. Klem, 499 F.3d 199, 206 (3d

Cir. 2007). In the familiar qualified immunity analysis, the

court asks “(1) whether the officer violated a constitutional

right, and (2) whether the right was clearly established, such

that ‘it would [have been] clear to a reasonable officer that his

conduct was unlawful.’” Lamont v. New Jersey, 637 F.3d 177,

182 (3d Cir. 2011) (alteration in original) (quoting Saucier v.

Katz, 533 U.S. 194, 202 (2001), overruled on other grounds by

Pearson v. Callahan, 555 U.S. 223 (2009)). The court may

address the steps in either order. Pearson, 555 U.S. at 236.

When considering whether a right was clearly

established, our “focus is on whether the officer had fair notice

that her conduct was unlawful,” so “reasonableness is judged

against the backdrop of the law at the time of the conduct.”

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam)

(quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per

curiam)). Although there need not be “a case directly on point

for a right to be clearly established, existing precedent must

have placed the . . . constitutional question beyond debate.” Id.

(quoting White v. Pauly, 137 S. Ct. 548, 551 (2017) (per

curiam)).

Here, the District Court ruled that Lieutenant Kacsuta

was not entitled to immunity with respect to part of the § 1983

excessive force claim against her, and that Officer Welling was

not entitled to immunity with respect to the entirety of the

9

excessive force claim against him. 4 We now explain why we

will reverse as to Lieutenant Kacsuta and affirm as to Officer

Welling.

The excessive force claim against Lieutenant Kacsuta

is, specifically, a failure to intervene claim. It is predicated on

the allegation that she did not stop Officers Warnock and

Welling from using force on the El brothers. “[A] police officer

has a duty to take reasonable steps to protect a victim from

another officer’s use of excessive force,” but only “if there is a

realistic and reasonable opportunity to intervene.” Smith v.

Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002). Naturally

4

The officers argue that “[t]he District Court erred by

wading into the first prong of a qualified immunity [analysis]

only to determine [that] the question of [whether the force was

excessive] should be left to a jury.” Appellants’ Br. 13; see also

Reply Br. 7-9. This seems to boil down to a quibble with the

Court’s phrasing. For each defendant, at the first step of the

qualified immunity analysis, the Court considered whether “a

reasonable factfinder could conclude” there was a

constitutional violation. El, 2018 WL 3707420, at *11; see also

id. at *12, 13. That is not error. It is simply another way of

saying that, “[t]aken in the light most favorable to the party

asserting the injury, . . . the facts alleged show the officer’s

conduct violated a constitutional right”—which is precisely

what a court is required to determine at this step of the analysis.

Saucier, 533 U.S. at 201; see also Ziccardi, 288 F.3d at 60

(affirming denial of qualified immunity where, as here, the

district court “held that a reasonable jury could find” that the

defendants violated the plaintiff’s constitutional rights, and

that the right was “clearly established” (internal quotation

marks and citation omitted)).

10

enough, the duration of the incident is key to determining

whether there was a reasonable opportunity. There may be a

genuine issue of fact regarding a reasonable opportunity to

intervene where the allegedly excessive force lasts about

fifteen minutes, Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3d

Cir. 1995), or where the event unfolds in multiple stages,

Smith, 293 F.3d at 644, 650 (plaintiff’s testimony created

dispute of material fact where he alleged he was “rammed . . .

into walls[,] . . . knocked . . . to the floor[,] . . . kicked and

punched[,] . . . pulled . . . to his feet,” and beaten some more

(internal quotation marks omitted)). By contrast, where an

incident is momentary, its “brevity” may “defeat[] [a] . . .

failure-to-intervene claim.” Ricks v. Shover, 891 F.3d 468, 479

(3d Cir. 2018) (no failure-to-intervene claim against a prison

supervisor where a guard allegedly made brief sexual contact

with an inmate, which had ended by the time the inmate called

for help).

The District Court granted Lieutenant Kacsuta’s

summary judgment motion for her alleged failure to prevent

the tasing of Beyshaud because it was “quick, five seconds, and

without warning,” so “a reasonable factfinder could not

conclude that Lieutenant Kacsuta had a reasonable opportunity

to intervene.” El, 2018 WL 3707420, at *13. However, the

Court denied summary judgment for her failure to intervene in

taking Will down. It held that “a reasonable factfinder could

conclude that Lieutenant Kacsuta, mere feet away from Officer

Welling[,] . . . passively watched” and “elected not to”

intervene, and that she “stepped away from the altercation at

one point.” Id. The District Court also ruled that “it was clearly

established on July 2, 2013, that when a fellow officer employs

excessive force during an arrest or investigatory stop, failing to

intervene violates the suspect’s constitutional rights.” Id.

11

We conclude that the video “blatantly contradict[s]” the

District Court’s finding regarding the failure to intervene

claim. Scott, 550 U.S. at 380. As Officer Welling took Will

down, Lieutenant Kacsuta took a few steps toward them and

then a few steps back, all within a matter of roughly five

seconds and while Officer Warnock, standing next to her,

deployed his taser on Beyshaud. JA72 (Video at 13:47:05-10).

Given the speed with which the incident ended, no reasonable

jury could conclude that Lieutenant Kacsuta had a realistic and

reasonable opportunity to intervene. See Williams v. City of

York, 967 F.3d 252, 258 (3d Cir. 2020) (“[W]here the trial

court’s determination that a fact is subject to reasonable dispute

is blatantly and demonstrably false, a court of appeals may say

so, even on interlocutory review.” (quoting Blaylock, 504 F.3d

at 414)). This fact pattern is more akin to Ricks, where the use

of force was momentary. 891 F.3d at 472, 479. It is less like

Baker, 50 F.3d at 1193-94, and Smith, 293 F.3d at 644, 652,

where a use of force lasted long enough to create a genuine

issue of fact regarding whether there was an opportunity to

intervene.

The Els argue that the “entire incident” lasted about

twenty minutes, and therefore Lieutenant Kacsuta could have

intervened. Appellees’ Br. 24. However, the question is not

whether she had an opportunity to intervene in the “entire

incident,” but in Officer Welling’s use of force, which lasted

about five seconds. She did not, so the District Court erred in

denying her motion for summary judgment based on qualified

immunity. 5

5

Having concluded there was no constitutional

violation, we do not assess the other step of the qualified

immunity analysis: “whether the right was clearly established.”

Lamont, 637 F.3d at 182.

12

The excessive force claim against Officer Welling is

predicated on his grabbing Will by the wrist and neck,

slamming him back into the wall of the vacant storefront, and

taking him to the ground. “To prevail on a Fourth Amendment

excessive-force claim, a plaintiff must show that a seizure

occurred and that it was unreasonable under the

circumstances.” Lamont, 637 F.3d at 182-83. “A seizure occurs

‘[w]henever an officer restrains the freedom of a person to

walk away.’” Rivas, 365 F.3d at 198 (alteration in original)

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

no dispute that there was a seizure here; the question is whether

it was reasonable.

When determining the reasonableness of an allegedly

excessive use of force, “the standard is whether the police

officer’s ‘actions [were] objectively reasonable in light of the

facts and circumstances’ . . . , regardless of the officer’s intent

or motivation.” Id. (first alteration in original) (quoting

Graham v. Connor, 490 U.S. 386, 397 (1989)). We consider

factors including “the severity of the crime at issue, whether

the suspect[s] pose[] an immediate threat to the safety of the

officers or others, and whether [they are] actively resisting

arrest or attempting to evade arrest by flight.” Graham, 490

U.S. at 396. We also assess the physical injury to the plaintiff,

“the possibility that the persons subject to the police action are

themselves violent or dangerous, the duration of the action,

whether the action takes place in the context of effecting an

arrest, the possibility that the suspect may be armed, and the

number of persons with whom the police officers must contend

at one time.” Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.

1997), abrogated on other grounds by Curley, 499 F.3d at 209-

11.

13

The District Court found that Will’s actions—“standing

up and taking one or two small steps towards Lieutenant

Kacsuta, located a few feet away”—were “not performed in a

threatening manner,” taking place as they did during “an

investigatory stop first for suspicion of possession of synthetic

marijuana and then for illegal sale/possession of cigarettes.”

El, 2018 WL 3707420, at *11. “Accordingly,” the Court held,

“a reasonable factfinder could conclude” that Officer Welling

“grabbing Will . . . by [the] wrist and neck and slamming him

into the wall of the vacant storefront and on to the pavement

was unreasonable and constituted an excessive use of force” in

violation of the Fourth Amendment. Id. The District Court then

concluded that case law clearly established an individual’s

“right to be free from the use of excessive force by police”

where, “during an investigatory stop for a minor offense, [he]

stands up and takes one or two small steps towards a police

officer, standing a few feet away, in a non-threatening

manner.” Id.

The District Court relied on a broader set of opinions

than it should have when determining that the right was clearly

established. Nevertheless, we will affirm because the right was

clearly established by applicable case law and a reasonable jury

could conclude it was violated.

1. Violation of a constitutional right

Officer Welling argues that the District Court’s

definition of the right was erroneous because Will’s conduct

was not necessarily non-threatening: after standing up, he did

not sit down when officers directed him to, and he “point[ed]

at various people in a vigorous manner.” Appellants’ Br. 23.

The thrust of this argument seems to be that “the situation was

tense and uncertain” and that the District Court erroneously

concluded there was a genuine issue of material fact regarding

14

whether Will’s conduct was threatening. Appellants’ Br. 24.

“[W]e generally lack jurisdiction to review the genuineness of

this kind of [factual] dispute” on interlocutory appeal from a

denial of immunity. Williams, 967 F.3d at 262.

Although we would not be required to defer to the

District Court if the video showed its conclusion was “blatantly

and demonstrably false,” id. (quoting Blaylock, 504 F.3d at

414; emphasis omitted), the District Court’s finding that Will

was non-threatening is not blatantly contradicted by the video,

see JA72 (Video at 13:45:48-13:47:13). The video clearly

shows what happened between the police and the Els, and we

have studied it extensively. Indeed, viewing the facts in “the

light depicted by the video[],” Scott, 550 U.S. at 381, confirms

that the District Court did not make any demonstrably false

findings about how the events unfolded. See JA72 (Video at

13:45:58-13:50:00).

The District Court correctly concluded that, taking the

facts in the light most favorable to Will, a jury could conclude

there was a violation of his right to be free from the

unreasonable use of force. The factors laid out in Graham v.

Connor, 490 U.S. at 386, and Sharrar, 128 F.3d at 822, show

why. Under the Graham factors, the potential crime at issue

(underage purchase of tobacco) was not severe; the Els did not

pose an immediate safety threat; and they were neither resisting

arrest nor trying to flee. See 490 U.S. at 396. Under the Sharrar

factors, the Els were not violent or dangerous; they were

unarmed; they were outnumbered six to two; and the situation

unfolded over a few minutes, not a few tense and dangerous

15

seconds. 6 See 128 F.3d at 822. The final Sharrar factor,

physical injury to the plaintiff, weighs in Will’s favor, because

he sustained a hip contusion—although the injury is relatively

minor. See id.

The dissent disagrees with the definition of the right at

issue, maintaining that the definition is not specific enough and

should encompass facts not found by the District Court. We

agree that the right must be defined with specificity. See, e.g.,

Kisela, 138 S. Ct. at 1152-53. Here, however, the District Court

followed that directive and did not speak at “a high level of

generality.” See Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).

Moreover, the presence of the video in the record does not

permit us to embark upon our own factfinding exercise. Rather,

as noted, “we must accept [the] set of facts” the District Court

found, Blaylock, 504 F.3d at 409, unless the video “quite

clearly contradicts” them, Scott, 550 U.S. at 378.

6

Although, as explained above, the relevant time frame

for Lieutenant Kacsuta to potentially intervene was limited to

the few seconds of Officer Welling’s sudden use of force, the

question here is different and the relevant time frame is

different. The question is whether Will’s right not to be

slammed and taken down was violated. The relevant time

frame is Officer Welling’s entire involvement in the encounter,

which was a few minutes, not just a few seconds. Those

minutes allowed Officer Welling to know that the Els were

unarmed and to understand that they believed they were being

harassed. This is unlike a case where an officer had “‘mere

seconds to assess the potential danger’ posed by [an] armed

and non-compliant plaintiff” and his “interaction with [the

plaintiff] was over within seconds of his arrival on the scene.”

James v. N.J. State Police, 957 F.3d 165, 172 (3d Cir. 2020)

(quoting Kisela, 138 S. Ct. 1153).

16

Officer Welling and the dissent believe that the

articulation of the right should include that Will “point[ed] at

an officer, and ignore[d] a gesture to sit back down.” Dissent,

Part I. The District Court made no findings to that effect. El,

2018 WL 3707420, at *4. While it may be one interpretation

of what happened, another interpretation could be that Will

was merely gesturing, as was Officer Welling, with no

apparent intent or direction. The dissent also believes that the

right should include the fact that when Officer Welling pushed

Will back, he did “not los[e] his footing.” But the video does

not clearly contradict the District Court’s finding that Officer

Welling slammed Will “back into the wall of the vacant

storefront . . . and on to the pavement.” Id. The video shows

that as Officer Welling pushed Will back, one of Will’s feet

extended forward and the other remained under him while his

body lowered to the ground. For a few moments, he seemed to

be supported by the wall. He then sank to the pavement with

Officer Welling still holding his wrist and, apparently,

supporting his weight at least partially. JA72 (Video at

13:47:05-10). None of this video evidence blatantly contradicts

the District Court’s findings about these moments. Scott, 550

U.S. at 379-80.

Scott’s rule, permitting us to disregard factual findings

that no reasonable jury could believe, is “a narrow exception

to the limits . . . on our jurisdiction” on review of a denial of

qualified immunity. Williams, 967 F.3d at 258; see also id. at

262 (reiterating principle that “we generally lack jurisdiction

to review the genuineness of [a factual] . . . dispute”). We

should apply Scott’s narrow exception carefully and strictly,

rather than viewing it as an invitation to find our own facts.

Therefore, the dissent’s preferred articulation of the right at

issue is not available to us within the limits of our jurisdiction.

17

A final point regarding the definition of the right:

Officer Welling is correct that “an action under section 1983

[may] not be maintained on the basis of events leading to a

conviction which has not been reversed . . . if a judgment in

favor of the plaintiff in the civil case would imply that the

conviction was invalid.” Nelson v. Jashurek, 109 F.3d 142, 144

(3d Cir. 1997) (citing Heck v. Humphrey, 512 U.S. 477, 485-

87 (1994)). The District Court’s definition of the right,

however, does not implicitly undermine Will’s disorderly

conduct conviction. Will was convicted of “creat[ing] a

hazardous or physically offensive condition” with “intent to

cause public inconvenience, annoyance or alarm.” 18 Pa. Cons.

Stat. § 5503(a)(4). Therefore, his § 1983 claim would be barred

by Heck if, in order to prevail, he needed to demonstrate that

he did not do so. But, even if an individual is engaged in

disorderly conduct, there still could be a level of responsive

force that is reasonable and a level that is “excessive and

unreasonable.” See Nelson, 109 F.3d at 145. Viewing the facts

in the light most favorable to Will, a jury could conclude that

Officer Welling’s use of force was objectively unreasonable,

even taking Will’s disorderly conduct into account.

2. Clear establishment of the right

Plaintiffs may show that a right is clearly established by

“point[ing] either to ‘cases of controlling authority in their

jurisdiction at the time of the incident’ or to ‘a consensus of

cases of persuasive authority.’” al-Kidd, 563 U.S. at 746

(Kennedy, J., concurring) (quoting Wilson v. Layne, 526 U.S.

603, 617 (1999)). In the absence of controlling authority from

the Supreme Court or this Court, the District Court correctly

looked to excessive force cases from our sister Circuits that

involve police use of non-deadly force on unarmed,

uncooperative citizens who were not suspected of serious

crimes. El, 2018 WL 3707420, at *11. These cases establish a

18

consensus that such an individual has the right not to be taken

to the ground during an investigatory stop when he stands up

and takes one or two small steps towards a police officer who

is standing a few feet away.

In Deville v. Marcantel, 567 F.3d 156, 161 (5th Cir.

2009) (per curiam), the plaintiff was pulled over for speeding.

She said she was following the speed limit, swore, refused to

get out of her car, and rolled up her window. Id. Officers

smashed the window, pulled her out of the car, threw her up

against it, and handcuffed her. Id. at 162. The district court

granted summary judgment to the officers on the plaintiff’s

§ 1983 excessive force claim based on qualified immunity, and

the Fifth Circuit reversed. Id. at 164, 167-69.

In Shreve v. Jessamine County Fiscal Court, 453 F.3d

681, 683-84 (6th Cir. 2006), the police went to the plaintiff’s

home to execute an arrest warrant for a misdemeanor, but she

hid in a closet and disobeyed orders to come out. Id. at 683-84.

The officers pepper sprayed her, and when she refused to

present her hands for cuffs, they struck her with a stick and

repeatedly took a knee to her back. Id. at 686. The district court

granted summary judgment to the officers, but the Sixth Circuit

reversed, holding that they were not entitled to qualified

immunity. Id. at 683, 688.

In Montoya v. City of Flandreau, 669 F.3d 867, 869 (8th

Cir. 2012), police were called to a home where a man and

woman were arguing. The woman “raised her right hand in a

fist and took a step forward toward [the man].” Id. at 870. The

officers attempted to handcuff her, and when she resisted,

swept her leg from under her so that she fell to the ground. Id.

at 869. The plaintiff broke her leg in the fall. Id. at 870. The

district court granted summary judgment to the officer who

swept the plaintiff’s leg, concluding that he was entitled to

19

qualified immunity. Id. at 870. The Eighth Circuit reversed. Id.

at 871-73.

In Thornton v. City of Macon, 132 F.3d 1395, 1398

(11th Cir. 1998) (per curiam), a woman called the police to

retrieve a mattress from the apartment of a man with whom she

once lived. The man refused to return the mattress and told the

police to leave. Id. The police persuaded him to open the door

and then “charged into the apartment[,] . . . . threw [him] to the

floor, cuffed his hands behind his back, picked him up by his

arms, dragged him outside and shoved him into a police car.”

Id. His bystanding friend was treated similarly. Id. The district

court denied the officers’ summary judgment motions, ruling

that they were not entitled to qualified immunity. Id. at 1397.

The Eleventh Circuit affirmed. Id. at 1400.

These cases from our sister Circuits establish a

“consensus . . . of persuasive authority,” al-Kidd, 563 U.S. at

742 (quoting Wilson, 526 U.S. at 617), that an unarmed

individual who is not suspected of a serious crime—including

one who is verbally uncooperative or passively resists the

20

police—has the right not to be subjected to physical force such

as being grabbed, dragged, or taken down. 7

Officer Welling argues that even if Will had a Fourth

Amendment right to be free of the kind of force he used, that

right was not clearly established in July 2013, when the

incident took place. To support this argument, he launches

various attacks on the cases the District Court relied on—but

none of these attacks succeed in dismantling the consensus of

persuasive authority.

First, Officer Welling argues that two of the cases were

published in 2017 and, therefore, cannot clearly establish

Fourth Amendment rights as of 2013. He is correct that the

question is what the case law held “at the time of the incident.”

7

The dissent states that our holding places “unrealistic

expectations” on Officer Welling because he “was supposed to

realize – in an instant, from four factually dissimilar out-of-

circuit decisions – that a grab-and-shove-to-secure under these

circumstances was clearly established as unconstitutional.”

Dissent, Part II. We disagree that the out-of-circuit cases are

factually dissimilar, as they involve unarmed individuals who

were not suspected of a serious crime and were uncooperative

or passively resistant. More fundamentally, the dissent’s

criticism takes issue not with our opinion, but with the

qualified immunity analysis itself. It is black-letter law that an

officer is not protected from suit when he or she acts in a way

that runs against “a robust consensus . . . of persuasive

authority,” al-Kidd, 563 U.S. at 742 (quoting Wilson, 526 U.S.

at 617), regarding what conduct violates the Constitution. If it

were too much to ask an officer to know constitutional

principles established by a consensus of cases from outside his

or her Circuit, the Supreme Court would need to solve that

problem.

21

al-Kidd, 563 U.S. at 746 (Kennedy, J., concurring) (quoting

Wilson, 526 U.S. at 617). However, the District Court’s

citation of two 2017 cases does not mean that the right was not

clearly established in 2013. The Court took care to note that

each of the 2017 cases relied on pre-2013 case law. See El,

2018 WL 3707420, at *11 (noting that Smith v. City of Troy,

874 F.3d 938, 945 (6th Cir. 2017) (per curiam), relied on a

2006 case, Shreve, 453 F.3d at 687, and Hanks v. Rogers, 853

F.3d 738, 747 (5th Cir. 2017), relied on a 2009 case, Deville,

567 F.3d at 167-69). 8

Officer Welling is also correct that unpublished cases,

which are not binding, cannot establish a right. See, e.g., 2d

Cir. L.R. 32.1.1(a); 3d Cir. I.O.P. 5.7. And, as Officer Welling

notes, the District Court relied on two unpublished decisions.

El, 2018 WL 370742, at *11 (citing Weather v. City of Mount

Vernon, 474 F. App’x 821 (2d Cir. 2012), and Santini v.

Fuentes, 739 F. App’x 718 (3d Cir. 2018)). Still, the District

Court’s citation to these cases is neither here nor there. As we

discuss above, a consensus of persuasive authority clearly

established the right.

8

The District Court may have cited the 2017 cases

because of their factual similarities to this case, intending to

show that the Fifth and Sixth Circuits had held that the case

law clearly established, based on pre-2013 cases, the right of

an individual in Will’s situation not to be taken to the ground.

See Hanks, 853 F.3d at 742-43 (plaintiff made a “small lateral

step” with his empty hands visible to the officer, and the officer

struck his upper back in a “half spear” and forced him to the

ground); Smith, 874 F.3d at 942 (plaintiff was not following

police instructions, and officer “took [him] to the ground with

a leg sweep”).

22

Officer Welling’s remaining arguments about the lack

of a clearly established right are also unpersuasive. It is

irrelevant that Montoya comes from the Eighth Circuit, which

is “geographically distant” from the Third. Appellants’ Br. 25.

The “robust consensus of cases of persuasive authority,” al-

Kidd, 563 U.S. at 742 (internal quotation marks omitted), need

not be from nearby courts. Nor is Montoya distinguishable on

the basis that the officer and the plaintiff were standing ten to

fifteen feet apart, 669 F.3d at 872, unlike Officer Welling and

Will, who were one or two steps apart. Officer Welling implies

that he was in more danger than the officers in Montoya, but

there, the two officers were outnumbered by four civilians. Id.

at 869. Here, the reverse was true—the six officers

significantly outnumbered the two El brothers, El, 2018 WL

370742, at *4. Therefore, Montoya cannot be distinguished

away based on relative danger.

Officer Welling also argues that Thornton could not

establish a right because a later Eleventh Circuit case

commented that it is unclear whether the problem in Thornton

was the use of excessive force or the use of any force at all.

Jackson v. Sauls, 206 F.3d 1156, 1171 n.20 (11th Cir. 2000).

We disagree that Thornton is unclear; it holds

straightforwardly that “[u]nder the circumstances, the officers

were not justified in using any force.” 132 F.3d at 1400. But

regardless, Thornton helps to establish the right of an unarmed,

uncooperative individual, who is not suspected of a serious

crime, to be free from being dragged, slammed, or taken to the

ground.

For his part, Will argues that we should affirm on an

alternative ground—that his right to be free of the kind of force

Officer Welling used is clearly established by the excessive

force factors provided in Graham, 490 U.S. at 396, and our

opinion in Sharrar, 128 F.3d at 822. The factor-based tests of

23

Graham and Sharrar, however, are “cast at a high level of

generality” and “can clearly establish the answer, even without

a body of relevant case law,” only “in an obvious case.”

Brosseau, 543 U.S. at 199 (internal quotation marks omitted).

We have concluded that cases are obvious, and that general

standards clearly establish a right, in extreme situations such

as when lethal force is used, Russell v. Richardson, 905 F.3d

239, 252 (3d Cir. 2018), or when a high school teacher sexually

harassed and assaulted students, Stoneking v. Bradford Area

Sch. Dist., 882 F.2d 720, 727 (3d Cir. 1989).

This case does not present that kind of situation, but the

Graham and Sharrar factors nevertheless buttress the robust

consensus of persuasive authority from our sister Circuits. As

discussed above, the factors all tend to show that Officer

Welling’s force was excessive: there was no serious crime, no

immediate safety threat, and no resistance or flight by the Els;

they were not armed and were significantly outnumbered. See

Graham, 490 U.S. at 396; Sharrar, 128 F.3d at 822. While we

would not hold that these factors, by themselves, clearly

established Will’s right to be free of the kind of force Officer

Welling used, they support the consensus of cases that show

clear establishment of the right.

The dissent disagrees with our analysis of the Graham

and Sharrar factors, asking, for example, “Do not standing

suspects pose more of a safety and flight risk than seated

suspects?” Dissent, Part II. Perhaps, but the threat posed by an

unarmed individual surrounded by police is minimal, even if

he is standing. The dissent discounts the officers’ six-to-two

advantage over the Els, saying that only three officers were

standing nearby and one of them, Lieutenant Kacsuta, was

shorter than the Els. This disregards the realities of the situation

and considerably undersells the officers’ capabilities. All of the

officers were close enough to lend a hand if needed. See JA72

24

(Video at 13:47:05-17, showing other officers running up as

Officer Welling took Will down). In addition, we have no

doubt that even police officers of relatively small stature have

the training and tools to subdue citizens of all sizes. 9 To

support the assessment that the Els were in fact violent or

dangerous, the dissent points to the fact that Beyshaud swung

at Officer Welling, but that was after Officer Welling grabbed

Will by the wrist and neck. The information Officer Welling

had when deciding whether to use force in the first place was

the brothers’ behavior to that point—and their behavior was

not violent or dangerous, only indignant.

* * *

Many police excessive force cases arise from dangerous

situations with multiple unknowns, such as when a plaintiff

flees in his car through a neighborhood with heavy pedestrian

traffic, Davenport v. Borough of Homestead, 870 F.3d 273,

280 (3d Cir. 2017), or is “running in close proximity to [a]

shooting” and disregards orders to get to the ground, Williams,

967 F.3d at 260. This is not one of those situations. Viewing

the facts in the light most favorable to Will, as we must, the

danger to the police and the community was virtually nil.

Officers approached two young men who were not engaged in

any facially suspicious behavior; they were leaving a corner

store. It became clear almost immediately that the men were

not armed and that if any offense was being committed, it was,

at most, an underage tobacco purchase. The men were upset to

be stopped and said so. They did not flee. They were

9

Lieutenant Kacsuta had a long career with the

Pittsburgh police prior to 2013; clearly, her height was not a

hindrance to her performance of her duties. See El, 2018 WL

3707420, at *5 (noting that Kacsuta had attained the rank of

sergeant as of 2003).

25

outnumbered six to two. One of them created a hazardous or

offensive condition by standing up and taking a few small

steps. Under these circumstances, a jury could conclude that

taking Will down was an unreasonable use of force. And a

consensus of cases from our sister Circuits establishes that in a

situation like this, a plaintiff has the right not to be taken to the

ground.

In reaching this conclusion, we are mindful that

reasonableness “must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20

vision of hindsight.” Graham, 490 U.S. at 396. There must be

“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.” Id. at 396-97. Officer

Welling may have been called upon to make a split-second

decision when Will stood up and took a few steps, but his

decision was made with the knowledge that Will was unarmed

and outnumbered.

For these reasons, Officer Welling is not entitled to

summary judgment based on qualified immunity.

We will reverse the denial of summary judgment on the

excessive force claim against Officer Kacsuta, affirm the

denial of summary judgment on the excessive force claim

against Officer Welling, dismiss the portion of the appeal

related to the denial of summary judgment on the state law

claim as to Officer Warnock, and remand for further

proceedings.

26

El v. City of Pittsburgh, No. 18-2856

PHIPPS, Circuit Judge, concurring in part and dissenting in

part.

I agree with the Majority Opinion’s reversal of the

District Court’s order with respect to Lieutenant Reyne

Kacsuta. I also agree with the jurisdictional dismissal of

Officer Ryan Warnock’s appeal because qualified immunity

does not apply to state-law tort claims. But in two respects I

part ways with the Majority’s affirmance of the order denying

qualified immunity to Officer Frank Welling at summary

judgment. First, I do not believe that the Majority Opinion

articulated the putative constitutional right at issue with the

high level of specificity required for the qualified immunity

analysis. Second, in my view, it is far from clearly established

that Officer Welling’s use of force against Will El – a grab-

and-shove-to-secure, which resulted in a bruise on the hip –

was unconstitutionally excessive. Thus, I respectfully dissent

in part and would reverse the order denying qualified immunity

to Officer Welling.

I. THE MAJORITY OPINION DOES NOT DEFINE THE

CONSTITUTIONAL RIGHT AT ISSUE WITH THE HIGH LEVEL

OF SPECIFICITY REQUIRED FOR THE QUALIFIED

IMMUNITY ANALYSIS.

Because “qualified immunity protects ‘all but the

plainly incompetent or those who knowingly violate the law,’”

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citation omitted),

the contours of the asserted constitutional right must be

articulated with specificity. And if precedent does not make

clear to “every reasonable officer” that certain conduct is

unlawful in a particular circumstance, then an officer taking

action in that situation is entitled to qualified immunity.

District of Columbia v. Wesby, 138 S. Ct. 577, 590, 592 (2018).

Thus, defining the right at issue with specificity is critical for

evaluating whether every reasonable officer would know that

certain conduct is unlawful under the circumstances. Such

specificity is “particularly important in excessive force cases.”

City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019).

I do not believe that the Majority Opinion articulates the

putative constitutional right with the requisite level of

precision. The Majority describes the Fourth Amendment right

in this way:

The right of an unarmed individual not to be

taken to the ground during an investigatory stop

when he stands up and takes one or two small

steps towards a police officer who is standing a

few feet away.

Maj. Op. at III.B.1 (alteration omitted); see also id. at III.B.2.

But that articulation ignores important facts. It does not

mention that Will El arose and extended an arm to point at an

officer at close range. It also neglects that Officer Welling

gestured for Will to sit down and that Will refused to. And

Officer Welling did not initially take Will to the ground.

Before the situation escalated, Welling grabbed and pushed

Will back into a boarded-up window with Will maintaining his

footing.

Each of those aspects of the incident can be seen from

dashboard camera video, which provides a basis for reviewing

an officer’s use of force. See Scott v. Harris, 550 U.S. 372,

2

378-81 (2007). During the detention, the El brothers, Will and

Beyshaud, were seated on a step, curb-height elevated from the

sidewalk, and while narrow in depth, the ledge spanned the

frontage of an entrance to a boarded-up building. As they sat,

the El brothers were facing the officers, and they had their

backs to the building. At one point, Will complained to Officer

Welling that the police were harassing him. After Officer

Welling responded, Will stood up and extended his arm toward

Officer Welling, who gestured for him to sit down. Ignoring

that gesture, and instead of sitting down, Will turned away

from Officer Welling and toward Lieutenant Kacsuta,

shuffling his feet one or two times. At that moment, Welling

grabbed Will by both the neck and wrist and pushed him so

that his back was against the boarded-up window. One of

Will’s feet was on the ledge, and the other remained on the

sidewalk.

The situation escalated from there. Beyshaud arose and

attempted to punch Officer Welling. Officer Warnock then

tasered Beyshaud. Then Welling took Will from leaning with

his back against the boarded-up window to a face down

position on the sidewalk for handcuffing. After the incident,

Will had a bruise on his hip.

Will El’s excessive force claim against Officer Welling

relates only to Welling’s initial use of force – the grab-and-

shove against the boarded-up window. No one disputes that

after Beyshaud arose and attempted to punch Officer Welling,

Welling was justified in taking Will to a face down position on

the sidewalk for handcuffing. See generally Appellees’ Br.

(repeatedly characterizing Officer Welling’s use of excessive

force as when he “grabbed Will El by the neck and slammed

him into a wall”).

3

Given these facts, I disagree with the Majority’s

definition of the right at issue. The inquiry into the putative

right should be expressed this way:

Whether an unarmed individual who arises to his

feet in close range to a police officer, points at an

officer, and ignores a gesture to sit back down

has a Fourth Amendment right not to be grabbed

and shoved backward into a vertical structure

while not losing his footing.

Such an articulation includes the three omitted events that

would matter to every reasonable officer: that Will stood up

and extended an arm to point at an officer at close range; that

Will ignored Officer Welling’s gesture to sit down; and that, as

far as the complained of use of force, Welling did not tackle

Will or take him to the ground. By excluding these important

details, which are plainly evident from the video recording, the

Majority Opinion does not identify the right with the “high

‘degree of specificity’” required. Wesby, 138 S. Ct. at 590

(quoting Mullenix, 577 U.S. at 309) (emphasis added).1

1

See City of Escondido, 139 S. Ct. at 503; see also Mann v.

Palmerton Area Sch. Dist., 872 F.3d 165, 173 (3d Cir. 2017)

(“[W]e must frame the right at issue in a more particularized,

and hence more relevant, sense, in light of the case’s specific

context, not as a broad general proposition.” (internal quotation

marks omitted)); Spady v. Bethlehem Area Sch. Dist., 800 F.3d

633, 638 (3d Cir. 2015) (holding that the Court “must define

the right allegedly violated at the appropriate level of

specificity” because to do otherwise would “controvert the rule

of qualified immunity that our cases plainly establish into a

rule of virtually unqualified liability simply by alleging

4

II. OFFICER WELLING’S CONDUCT WAS NOT CLEARLY

ESTABLISHED AS AN UNCONSTITUTIONAL USE OF

EXCESSIVE FORCE.

Under either formulation (the Majority’s or mine), the

constitutional right at issue was not clearly established. For a

constitutional right to be ‘clearly established,’ the legal

principle “must have a sufficiently clear foundation in then-

existing precedent.” Wesby, 138 S. Ct. at 589. Such a

foundation in precedent may rest on either “controlling

authority” or “a robust consensus of cases of persuasive

authority.” Ashcroft v. al-Kidd, 563 U.S. 731, 741-42 (2011)

(internal quotation marks omitted); see also Wesby, 138 S. Ct.

at 589-90; James v. N.J. State Police, 957 F.3d 165, 170 (3d

Cir. 2020). The Majority Opinion does not identify any

“factually analogous precedents of the Supreme Court [or] the

Third Circuit.” James, 957 F.3d at 170. Without controlling

authority to meet the ‘clearly established’ threshold, the

Majority relies instead on four decisions from other federal

appellate courts as persuasive authority.2

While the ‘clearly established’ standard does “not

require a case directly on point,” those four cases fall well short

of “a robust consensus of persuasive authority.” al-Kidd,

violation of extremely abstract rights” (internal quotation

marks and citations omitted)).

2

See Maj. Op. at III.B.2 (citing Montoya v. City of Flandreau,

669 F.3d 867 (8th Cir. 2012); Deville v. Marcantel, 567 F.3d

156 (5th Cir. 2009) (per curiam); Shreve v. Jessamine Cty.

Fiscal Court, 453 F.3d 681 (6th Cir. 2006); Thornton v. City of

Macon, 132 F.3d 1395 (11th Cir. 1998)).

5

563 U.S. at 741-42 (internal quotation marks omitted). None

of them involves a sufficiently analogous situation to this one

to be “clear enough that every reasonable official would

interpret [them] to establish the particular rule the plaintiff

seeks to apply.” Wesby, 138 S. Ct. at 590 (emphasis added).

In Montoya, a woman resisted handcuffing, and one police

officer grabbed her arm while another kicked her leg out from

underneath her. See 669 F.3d at 869-70. That kick caused the

woman to fall face first onto the ground and one officer to fall

on top of her and break her leg. See id. But the actions of

those officers and the degree of force that they used differ from

this case: Will was pushed backwards while maintaining his

footing, and he left with a bruised hip, not a broken leg. Deville

involved a traffic stop and an individual who refused to get out

of her vehicle. See 567 F.3d at 161. An officer grabbed and

pulled the woman out of the car, pushed her against it, and

handcuffed her resulting in a shoulder strain and lasting injury

to her right elbow. See id. Will El was not in a vehicle, was

not refusing to approach an officer, and did not leave with any

lasting injury. Shreve involved the execution of an arrest

warrant for a woman who refused to come out of her closet.

See 453 F.3d at 683-86. There, after entering the house, an

officer pepper sprayed the woman and jumped on her back with

his knee while she was on the ground. See id. But this case

does not involve a person hiding from police in her own home,

pepper spray, or that level of force. In Thornton, as part of a

civil property exchange, police officers charged into an

apartment, threw a person to the floor, handcuffed him, and

dragged him to the police vehicle. See 132 F.3d at 1398.

Again, that is different than a grab-and-shove-to-secure during

an investigatory stop on a sidewalk. If these out-of-circuit

cases constitute a robust consensus that “squarely governs” this

6

scenario, then we need a new level. Mullenix, 136 S. Ct. at

310.

In reaching this outcome, the Majority Opinion places

unrealistic expectations on law enforcement officers.

According to the Majority, Officer Welling was supposed to

realize – in an instant, from four factually dissimilar out-of-

circuit decisions – that a grab-and-shove-to-secure under these

circumstances was clearly established as unconstitutional.

Apparently, in that split-second, Officer Welling should have

had recall of an Eighth Circuit case from 2012, a Fifth Circuit

case from 2009, a Sixth Circuit case from 2006, and an

Eleventh Circuit case from 1998 – all of which occurred in

different contexts and involved much greater force than the

grab-and-shove-to-secure at issue here. See Plumhoff v.

Rickard, 572 U.S. 765, 780 (2014) (rejecting that caselaw

clearly established a right for a scenario in which “certain facts

[were] more favorable to the officers”). Not only that, but

Officer Welling – in the same moment – needed to determine

whether those factually dissimilar, non-controlling cases

represented a robust consensus of persuasive authority. Even

if that were possible, that small handful of cases does not place

Officer Welling’s use of force “beyond debate,” such that it

was a clearly established Fourth Amendment violation. al-

Kidd, 563 U.S. at 741; see also Brosseau v. Haugen, 543 U.S.

194, 200 (2004) (concluding that a right was not clearly

established when the only relevant authority consisted of “a

handful of cases” from other circuits).

Make no mistake, the Majority imposes a heightened

standard for qualified immunity so that it no longer protects

‘“all but the plainly incompetent or those who knowingly

violate the law.’” Mullenix, 136 S. Ct. at 308 (citation omitted).

7

Officers without the acumen to conduct a synapse-quick legal

analysis of factually dissimilar, out-of-circuit precedent will be

denied immunity and subject to suit for their actions. The

Majority responds that it is not applying a heightened standard

but rather the black-letter law of qualified immunity. Maj. Op.

at n.7. But in articulating the doctrine, the Supreme Court has

not imposed such a high standard on officers. See, e.g.,

Plumhoff, 572 U.S. at 578-80; Brosseau, 543 U.S. at 200. To

the contrary, the Supreme Court has recognized that “it is

sometimes difficult for an officer to determine how the relevant

legal doctrine, here excessive force, will apply to the factual

situation the officer confronts.” Kisela v. Hughes, 138 S. Ct.

1148, 1152 (2018) (internal quotation marks, alteration, and

citation omitted).3 Rather than acknowledge that difficulty, or

even that the appropriateness of Officer Welling’s use of force

is not “beyond debate,” al-Kidd, 563 U.S. at 741, the Majority

faults Officer Welling for failing to instantaneously distill a

loose collage of out-of-circuit caselaw into a robust consensus

of persuasive authority that would apply to the particular

circumstances of his use of force – which was less than the

amount of force used in any of those other cases.

3

See also id. (“[P]olice 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.” (internal quotation marks

and citation omitted)); Graham, 490 U.S. at 396 (“Not every

push or shove, even if it may later seem unnecessary in the

peace of a judge’s chambers violates the Fourth Amendment.”

(quotation omitted)).

8

To bolster its outcome, the Majority looks to borrow

momentum from the factor-based tests of Graham v. Connor,

490 U.S. 386 (1989), and Sharrar v. Felsing, 128 F.3d 810 (3d

Cir. 1997). See Maj. Op. at III.B.2. But those factors, ten in

total, do not make this an “obvious case” or otherwise clearly

establish that Officer Welling’s use of force was

unconstitutional. Brosseau, 543 U.S. at 199 (recognizing that

the Graham factors may serve as a basis for a clearly

established right in an “obvious case”); see also James,

957 F.3d at 169.

The Graham factors do not render Officer Welling’s use

of force excessive. As to the first factor – the severity of the

offense – the Majority concludes that the offense for which the

El brothers were detained (the underage purchase of tobacco)

was not severe. But this factor does not merit much, if any,

weight in the context of an officer, like Officer Welling, who

did not initiate the detention and who responded to a call for

backup. The Majority also concludes that the second and third

factors – the immediacy of the safety threat and efforts to resist

or evade arrest – were not met. But Will El arose and

disregarded a gesture to sit down. Do not standing suspects

pose more of a safety and flight risk than seated suspects?

From the “peace of a judge’s chambers,” Graham, 490 U.S. at

396 (quotation omitted), that difference may seem small, but

on the street, when a suspect increases the threat and flight

level, it is too much to read the Constitution as prohibiting

altogether the use of force.

I find the Majority’s analysis of the Sharrar factors

similarly unconvincing. As to the first factor, the Majority

concludes that the Els were not violent or dangerous, see Maj.

Op. at III.B.2, but in a flash Beyshaud arose and attempted to

9

punch Officer Welling. Nor did Welling have the duration of

the detention to contemplate his use of force – as the Majority

suggests. See Maj. Op. at n.6. Rather, Officer Welling had to

make a split-second decision on his use of force: he had an

opportunity to secure Will after Will arose, disregarded a

gesture to sit down, and looked away. See id. at I.A. (“The

events that happened [surrounding Welling’s use of force]

cascaded quickly and were over in about ten seconds.”). The

Majority also counts the outnumbering of officers to detainees

as six to two. But that statistic alone does not provide an

accurate description. Only three of those officers were on the

sidewalk next to the El brothers, and one of those three,

Lieutenant Kacsuta, who was the object of Will El’s attention

at the moment of Officer Welling’s use of force, is smaller in

stature than the El brothers. Finally, it should not be minimized

that Will’s reported injury – a bruise on the hip – is minor.

Under the Graham / Sharrar factors, this is not an

“obvious case” of excessive force. Brosseau, 543 U.S. at 199.

Instead, these factors generate uncertainty, and that further

undermines the Majority’s conclusion that Officer Welling

violated a clearly established constitutional right.

***

In sum, I concur in part and respectfully dissent in part.

As I understand the law, qualified immunity shields Officer

Welling from suit because at the time of the incident, it was not

clearly established that a grab-and-shove-to-secure, which

resulted in a bruise on the hip, constituted excessive force in

violation of the Fourth Amendment. Given the caselaw at the

time, these events occurred in the “hazy border between

excessive and acceptable force” in which law enforcement

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officers are entitled to qualified immunity. Mullenix, 136 S.

Ct. at 312 (internal quotation marks and citation omitted).

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