Jose Peroza-Benitez v. Darren Smith

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 20-1390

___________

JOSE ANTONIO PEROZA-BENITEZ,

Appellant

v.

C.I. DARREN C. SMITH; C.I. KEVIN HASER;

C.I. MICHAEL PERKINS; OFFICER DANIEL WHITE;

OFFICER NICHOLAS EPOLITO

_________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 5-17-cv-03980)

District Judge: Honorable Nitza I. Quiñones Alejandro

_________________________________

Argued November 18, 2020

Before: JORDAN, KRAUSE, and RESTREPO,

Circuit Judges

(Opinion Filed: April 8, 2021)

Tyson Y. Herrold [ARGUED]

Kevin M. Bovard

Baker & Hostetler LLP

2929 Arch Street

Cira Centre, 12th Floor

Philadelphia, PA 19104

Counsel for Appellant

David J. MacMain

Tricia M. Ambrose [ARGUED]

MacMain Connell & Leinhauser

433 West Market Street, Suite 200

West Chester, PA 19382

Counsel for Appellees

___________

OPINION OF THE COURT

___________

RESTREPO, Circuit Judge.

This civil rights action arises from events that took place

during the execution of a search warrant at the home of Plain-

tiff-Appellant Jose Antonio Peroza-Benitez. Peroza-Benitez

brought suit against members of the City of Reading Police

Department pursuant to 42 U.S.C. § 1983, alleging violations

of his rights under the Fourth and Fourteenth Amendments of

the United States Constitution. Peroza-Benitez also asserted

battery claims under Pennsylvania common law. Defendants

moved for summary judgment on the grounds of qualified im-

munity, which Peroza-Benitez opposed only as to two Defend-

ants, Criminal Investigator (C.I.) Kevin Haser and Officer

Daniel White. The District Court granted summary judgment

in favor of C.I. Haser and Officer White and declined to exer-

cise supplemental jurisdiction over Peroza-Benitez’s state law

claims. Peroza-Benitez appeals. For the reasons set forth in

this opinion, we will vacate the District Court’s order and re-

mand for further proceedings.

2

I.

A.

In the predawn hours of October 8, 2015, Peroza-Beni-

tez awoke to the sound of members of the City of Reading Po-

lice Department breaking down the back door to his third-floor

apartment, pursuant to the execution of a search warrant related

to suspected controlled substances offenses. “Scared” and un-

aware of who was entering his apartment, Peroza-Benitez

climbed out of his bedroom window onto the roof of his build-

ing wearing only an undershirt, boxer shorts, and flip flops.

App. 35-36. Shortly thereafter, Peroza-Benitez realized the po-

lice were in pursuit and, rather than surrendering, led officers

on a rooftop chase.

Officer Darren Smith, one of the officers pursuing

Peroza-Benitez on the roof, radioed that Peroza-Benitez was in

possession of a firearm. Officer Smith testified that he told

Peroza-Benitez “[n]umerous times to drop the gun” and, in re-

sponse, Peroza-Benitez said, “I’m not gonna shoot anybody, or

something along those lines.” App. 52. Audio recordings cor-

roborate that officers were told over the radio that Peroza-Be-

nitez had a firearm. According to Officer Smith, Peroza-Beni-

tez dropped the firearm while on the roof, App. 52-53, and sev-

eral officers testified that, after Peroza-Benitez dropped the

firearm, it fell off of the roof and landed on the ground in an

alley. App. 52-53, 59, 97, 254. Peroza-Benitez denies having

a firearm at any time during the course of the incident. 1 App.

1

The District Court reasoned that since Peroza-Benitez

“pled guilty to possession of a firearm as a result of this very

incident,” he “certainly cannot now claim that he was unarmed

for the entirety of this incident.” Peroza-Benitez v. Smith, No.

17-3980, 2020 WL 419461, at *1, n.2 (E.D. Pa. Jan. 24, 2020).

Peroza-Benitez points out that the crime of possession that he

pled guilty to – 18 Pa. C.S. § 6105(a)(1) (“Persons Not to Pos-

sess, Use, Manufacture, Control, Sell, or Transfer Firearms”) –

covers constructive, as well as actual, possession. Appellant’s

Br. 35; App. 313; see 18 Pa. C.S. § 6105(a)(1); Commonwealth

v. McClellan, 178 A.3d 874, 876 n.1, 878 (Pa. Super. Ct. 2018).

For the purposes of this appeal, we apply the summary judg-

3

36. However, officers recovered a firearm at the scene. There

is conflicting testimony as to where the firearm was recovered:

The police report indicates that the firearm was “found on

Peroza-Benitez possession [sic],” App. 309, yet Officer Nich-

olas Epolito testified that officers located the firearm in the al-

ley. The Defendants did agree that no items except clothing

were “found on [Peroza-Benitez’s] person after his arrest.”

App. 299.

At the end of the block, Peroza-Benitez entered an aban-

doned building. Several officers, including Officer Smith and

C.I. Haser (who had been trailing the chase on street level),

followed Peroza-Benitez into the abandoned building and cor-

nered him on the second floor. Peroza-Benitez proceeded to

climb out of a street-facing, second-story window.

By the time that Peroza-Benitez climbed out of the win-

dow, C.I. Haser was aware that Peroza-Benitez was unarmed

and shifted his attention to Peroza-Benitez’s safety, recogniz-

ing that the over ten-foot fall from the window could result in

injury. App. 185, 187. With their firearms holstered, Officer

Smith and C.I. Haser grabbed ahold of Peroza-Benitez and at-

tempted to hoist him back through the window. App. 56-57,

185-86. Both Officer Smith and C.I. Haser testified that

Peroza-Benitez – injured and “slippery” as he was covered in

his own blood – resisted their efforts. App. 56-57, 185-86.

According to Peroza-Benitez, as he was hanging from

the windowsill with his hands, his feet “dangling,” C.I. Haser

“repeatedly” punched him in the temple region of his head with

a closed fist. App. 173. C.I. Haser testified that he punched

Peroza-Benitez “[o]ne or two times . . . . [p]robably two,” with

the purpose being to “stun” and “disorient” Peroza-Benitez

into compliance “to help him out.” App. 186-87. C.I. Haser

testified that his punches had no effect on Peroza-Benitez, who

ment standard and construe the facts surrounding Peroza-Be-

nitez’s carrying of a firearm during the relevant periods of the

incident in the light most favorable to Peroza-Benitez. And we

leave it to the District Court in the first instance to determine,

as it deems necessary, if the record supports any theory of con-

structive possession and what, if any, significance that may

have with regard to the guilty plea.

4

continued to resist against officers’ efforts to pull him back in-

side, although C.I. Haser noted that Peroza-Benitez did not use

any force against them. It is unclear from the record when the

officers let go of Peroza-Benitez. Nevertheless, at a certain

point, C.I. Haser thought “we’re like, screw it, you want to fall,

you’re gonna fall. So we let go of him.” App. 187.

And Peroza-Benitez fell. C.I. Haser described Peroza-

Benitez’s fall as follows:

And he’s hanging from the win-

dowsill. Now his feet are dangling

below him. And he’s just hanging

there and he is looking at us.

We’re like, do you want us to help

you? And he’s just looking at us

and his fingers slide off and he

drops straight down . . . .

App. 187. According to Peroza-Benitez, C.I. Haser’s punches

caused him to fall.

A number of officers, as well as a police K9, had assem-

bled on the otherwise empty street and sidewalk in front of the

building and witnessed Peroza-Benitez’s fall from the window.

One such officer was Officer White, who positioned himself

on the sidewalk below the window where Peroza-Benitez was

hanging, only “10 feet” from where Peroza-Benitez would

have been had he “climbed down and stood on the sidewalk or

the porch.” App. 96-97. Officer White had heard the earlier

radio transmission that Peroza-Benitez was armed and as-

sumed that was still the case given that he “did not see a lack

of a weapon” on Peroza-Benitez when he was hanging from

the window. App. 97. Officer White testified that Peroza-Be-

nitez was “wearing some type of T-shirt” and pants as he was

hanging from the window, App. 96, however, Peroza-Benitez

indicated that he “was wearing only boxer shorts” at the time,

App. 173.

Once C.I. Haser and Officer Smith appeared in the win-

dow, Officer White holstered his firearm (which he had been

aiming at Peroza-Benitez) and drew his taser, in part because

he believed that “the situation was becoming more contained.”

5

App. 97, 108. According to Officer White, Peroza-Benitez was

“figuratively boxed in” at this point. App. 98-99. Officer

White indicated to his fellow officers that he was ready to assist

should Peroza-Benitez fall. Officer White did not observe a

weapon, or “the absence of one,” in Peroza-Benitez’s hands as

he fell from the window. App. 101.

Falling feet first, Peroza-Benitez’s leg collided with the

railing of an elevated porch before landing backwards with a

“thud” into a below-ground, concrete stairwell. App. 101. Of-

ficers’ testimony differs as to whether Peroza-Benitez volun-

tarily moved upon landing. For example, Officer White testi-

fied that Peroza-Benitez “started to sit forward” upon landing,

App. 101, while C.I. Michael Perkins testified that “[a]s soon

as [Peroza-Benitez] hit the ground, he made a [lunging] motion

like he was going to start running again,” App. 262. In con-

trast, Peroza-Benitez testified that he hit his head on the con-

crete steps as a result of the fall and was knocked temporarily

unconscious.

Officer White tased Peroza-Benitez after he struck the

concrete steps. Officer White, without providing a verbal

warning, deployed his taser in dart mode for a 5-second cycle.

Accounts differ as to the exact duration of time that elapsed

between Peroza-Benitez landing in the stairwell and getting

tased, ranging from “as soon as he hit the concrete” to “less

than five seconds.” App. 60, 101, 189, 222, 264. However,

the parties agree that Peroza-Benitez was tased either immedi-

ately or almost immediately upon landing. Appellant’s Br. 8;

Appellees’ Br. 6.

Soon thereafter, officers took Peroza-Benitez into cus-

tody. Peroza-Benitez was transferred from the scene to the

hospital, where he received care for “trauma” and underwent

surgery for arm injuries and a fractured leg. App. 325.

B.

On September 5, 2017, Peroza-Benitez commenced the

instant action. The District Court appointed pro bono counsel 2

2

We recognize Tyson Y. Herrold, Esq. and Kevin M.

Bovard, Esq. of Baker & Hostetler LLP – appointed counsel –

6

in December 2017, and Peroza-Benitez thereafter filed an

amended complaint pursuant to 42 U.S.C. § 1983, alleging that

five officers used excessive force in violation of his Fourth and

Fourteenth Amendment rights during his October 2015 arrest.

Peroza-Benitez also asserted battery claims under Pennsylva-

nia common law.

Following the close of discovery, Defendants filed a

motion for summary judgment on the grounds of qualified im-

munity. Peroza-Benitez opposed the motion only as to C.I.

Haser and Officer White. On January 24, 2020, the District

Court granted Defendants’ motion for summary judgment,

finding that both C.I. Haser and Officer White were entitled to

qualified immunity because Peroza-Benitez’s constitutional

rights at issue were not “clearly established” at the time of the

incident. The District Court declined to exercise supplemental

jurisdiction over Peroza-Benitez’s state law claims pursuant to

28 U.S.C. § 1367(c). Peroza-Benitez appeals.

II.

The District Court had jurisdiction over Peroza-Beni-

tez’s Fourth Amendment and Fourteenth Amendment claims

under 28 U.S.C. §§ 1331, 1343 and over Peroza-Benitez’s state

law claims pursuant to 28 U.S.C. § 1367. We exercise juris-

diction pursuant to 28 U.S.C. § 1291.

We review de novo a district court’s grant of summary

judgment on the grounds of qualified immunity. Halsey v.

Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). Applying the same

standard as a district court, summary judgment is proper when

“the movant shows that 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); Bletz v. Corrie, 974 F.3d 306,

308 (3d Cir. 2020). A “material fact” is one that “might affect

the outcome of the suit under the governing law[.]” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is a

“genuine” dispute of “material fact” when “a reasonable jury

could return a verdict for the nonmoving party.” Id.; Santini v.

Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (“Santini I”). At

summary judgment, “we must construe all facts and inferences

for their dedicated pro bono representation of Peroza-Benitez

in this matter.

7

in favor of the nonmoving party.” Santini I, 795 F.3d at 419.

Our role is “to determine whether there is a genuine issue for

trial,” it is “not . . . to weigh the evidence and determine the

truth of the matter.” Baloga v. Pittston Area Sch. Dist., 927

F.3d 742, 752 (3d Cir. 2019) (quoting Anderson, 477 U.S. at

249).

III.

We must determine whether it was appropriate for the

District Court to grant summary judgment on the grounds of

qualified immunity in favor of C.I. Haser and Officer White as

to Peroza-Benitez’s Fourth Amendment claims. As detailed

below, we hold that, in view of disputed issues of material fact,

the District Court erred in finding that C.I. Haser and Officer

White were entitled to qualified immunity for their actions on

October 8, 2015. Based on the following analysis, we will va-

cate the District Court’s ruling and remand for further proceed-

ings.

A.

At the outset, we reemphasize that the judicially created

doctrine of qualified immunity “balances two important inter-

ests – the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they perform

their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,

231 (2009). While qualified immunity allows public officials

to execute their duties without the constant threat of litigation,

it is “no license to lawless conduct.” Harlow v. Fitzgerald, 457

U.S. 800, 819 (1982). Rather, “[w]here an official could be

expected to know that certain conduct would violate statutory

or constitutional rights,” qualified immunity calls for the offi-

cial to “hesitate” before proceeding, “and a person who suffers

injury caused by such conduct may have a cause of action.” Id.

“Police officers, embodying the authority of the state,

are liable under § 1983 when they violate someone’s constitu-

tional rights, unless they are protected by qualified immunity.”

Santini I, 795 F.3d at 416-17 (quoting Curley v. Klem, 499 F.3d

199, 206 (3d Cir. 2007)). At summary judgment, the burden is

on the officer to establish an entitlement to qualified immunity.

Halsey, 750 F.3d at 288. When multiple officers seek to invoke

8

qualified immunity, we separately consider each officer’s ac-

tions. Grant v. City of Pittsburgh, 98 F.3d 116, 122-23 (3d Cir.

1996).

“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, 577

U.S. 7, 11 (2015) (per curiam) (quoting Pearson, 555 U.S. at

231). To determine whether a police officer is entitled to qual-

ified immunity, we conduct a two-prong inquiry. Davenport

v. Borough of Homestead, 870 F.3d 273, 280 (3d Cir. 2017).

The first prong – a constitutional inquiry – requires us to con-

sider the following question: “Taken in the light most favora-

ble to the party asserting the injury, do the facts alleged show

the officer’s conduct violated a constitutional right?” Id. (quot-

ing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The second

prong requires us to consider “whether the right was clearly

established, such that ‘it would [have been] clear to a reasona-

ble officer that his conduct was unlawful in the situation he

confronted.’” Lamont v. New Jersey, 637 F.3d 177, 182 (3d

Cir. 2011) (quoting Saucier, 533 U.S. at 202). An answer in

the negative to either prong entitles an officer to qualified im-

munity. See Reedy v. Evanson, 615 F.3d 197, 223-24 (3d Cir.

2010). Courts may begin their inquiry with either prong. See

Santini I, 795 F.3d at 418 (citing Pearson, 555 U.S. at 236).

B.

The District Court chose to begin with the “clearly es-

tablished” prong. We will do the same.

To determine whether a right was “clearly established,”

we conduct a two-part inquiry. First, we must “define the right

allegedly violated at the appropriate level of specificity.”

Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012). This re-

quires use to frame the right “in light of the specific context of

the case, not as a broad general proposition.” Saucier, 533 U.S.

at 201; see also Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).

Second, we must ask whether that right was “clearly estab-

lished” at the time of its alleged violation, i.e., whether the right

was “sufficiently clear that a reasonable official would under-

stand that what he is doing violates that right.” Saucier, 533

U.S. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640

9

(1987)). This is an “objective (albeit fact-specific) question,”

where “[an officer]’s subjective beliefs . . . are irrelevant.” An-

derson, 483 U.S. at 641; see also Reedy, 615 F.3d at 224.

We answer this question by first looking to factually

analogous Supreme Court precedent, as well as binding opin-

ions from our own Court. Fields v. City of Phila., 862 F.3d

353, 361 (3d Cir. 2017). Next, we consider whether there is a

“robust consensus of cases of persuasive authority in the

Courts of Appeals.” Id. (quoting L.R. v. Sch. Dist. of Phila.,

836 F.3d 235, 248 (3d Cir. 2016)). We may also take into ac-

count district court cases, from within the Third Circuit or else-

where. See id. (citing Doe v. Delie, 257 F.3d 309, 321 n.10 (3d

Cir. 2001)). 3

As we examine the case law, we must keep in mind that

this Court takes a “broad view of what constitutes an estab-

lished right of which a reasonable person would have known.”

Kopec v. Tate, 361 F.3d 772, 778 (3d Cir. 2004) (quoting Burns

v. Cnty. of Cambria, 971 F.2d 1015, 1024 (3d Cir. 1992)). And

a right may be “clearly established” even without a “‘precise

factual correspondence’ between the case at issue and a previ-

ous case.” Id. (quoting People of Three Mile Island v. Nuclear

Regulatory Comm’rs, 747 F.2d 139, 144-45 (3d Cir. 1984));

see also Ashcroft, 563 U.S. at 741 (“We do not require a case

directly on point, but existing precedent must have placed the

statutory or constitutional question beyond debate.”) (citation

omitted). A public official does not get the benefit of “one li-

ability-free violation” simply because the circumstance of his

case is not identical to that of a prior case. Kopec, 361 F.3d at

778 (quoting People of Three Mile Island, 747 F.2d at 145).

And while “[p]recedent involving similar facts can help

move a case beyond the otherwise ‘hazy border between ex-

cessive and acceptable force’ and thereby provide an officer

notice that a specific use of force is unlawful,” Kisela v.

Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam) (quoting

3

We note that “appellate review of qualified immunity

dispositions is to be conducted in light of all relevant prece-

dents, not simply those cited to, or discovered by, the district

court.” Elder v. Holloway, 510 U.S. 510, 512 (1994).

10

Mullenix, 577 U.S. at 18), in some exceptional cases the “vio-

lation [is] obvious” such that general statements of law may

suffice to show that a right is “clearly established,” even in the

absence of factually analogous precedent, Brosseau v. Haugen,

543 U.S. 194, 199 (2004) (citing Hope v. Pelzer, 536 U.S. 730,

738 (2002) (internal quotations omitted)); Russell v. Richard-

son, 905 F.3d 239, 252 (3d Cir. 2018). In the excessive force

context, an “obvious” case is one where the general statements

of law articulated in Graham v. Connor, 490 U.S. 386 (1989)

and Tennessee v. Garner, 471 U.S. 1 (1985) provide the requi-

site notice. 4 Brosseau, 543 U.S. at 198-99.

1.

The District Court found that C.I. Haser was entitled to

qualified immunity as “[his] actions did not violate a clearly

established constitutional right, because ‘a reasonable officer

in [his] shoes at the time in question would not have perceived

federal law to preclude’ his conduct.” Peroza-Benitez v. Smith,

No. 17-3980, 2020 WL 419461, at *4 (E.D. Pa. Jan. 24, 2020)

(quoting Brown v. Cwynar, 484 F. App’x 676, 681 (3d Cir.

2012)). We disagree. Viewing the facts in the light most fa-

vorable to Peroza-Benitez as the non-moving party – as we are

required to do at summary judgment – a reasonable jury could

find that C.I. Haser’s actions violated a “clearly established”

right.

We first define the right that C.I. Haser allegedly vio-

lated. The District Court defined Peroza-Benitez’s right as

“the Fourth Amendment right to be free from excessive force

in the form of multiple punches to the head while hanging out

of a window through which he had attempted to flee and while

4

Graham “clearly establishes the general proposition

that use of force is contrary to the Fourth Amendment if it is

excessive under objective standards of reasonableness.”

Brosseau, 543 U.S. at 198 (quoting Saucier, 533 U.S. at 201-

02); see Graham, 490 U.S. at 396. And Garner stands for the

proposition that “[deadly] force may not be used unless it is

necessary to prevent . . . escape and the officer has probable

cause to believe that the suspect poses a significant threat of

death or serious physical injury to the officer or others.” Gar-

ner, 471 U.S. at 3.

11

known to be unarmed.” Peroza-Benitez, 2020 WL 419461, at

*4. Here, Peroza-Benitez was unarmed, injured, covered in his

own blood, and hanging from a second-story window by his

hands, feet dangling, when C.I. Haser – knowing Peroza-Beni-

tez to be unarmed – punched him “repeatedly” in the head with

a closed fist. App. 173. C.I. Haser’s punches “stunned and

disoriented” Peroza-Benitez, causing him to fall over ten feet

into a below-ground concrete stairwell. App. 173. Accord-

ingly, we rely on a modification of the District Court’s defini-

tion: The Fourth Amendment right of an injured, visibly un-

armed suspect to be free from temporarily paralyzing force

while positioned at a height that carries with it a risk of serious

injury or death.

Next, we ask whether Peroza-Benitez’s defined right

was “clearly established” at the time of C.I. Haser’s alleged

violation. We do not find any factually analogous precedent

from either the Supreme Court or our own Court, thus we turn

to persuasive authority in the Courts of Appeals and district

courts. It is within this inquiry that we find the necessary “ro-

bust consensus of cases” supporting our holding that a reason-

able jury could find that C.I. Haser, by punching Peroza-Beni-

tez “repeatedly” in the head as he hung out of a second-story

window, violated a “clearly established” right. Fields, 862

F.3d at 361; App. 173.

In Martin v. City of Reading – decided less than three

months prior to the incident at question here – police pursued

the plaintiff to a highway overpass, from which the plaintiff

fell nearly 40 feet onto concrete after being tased by a City of

Reading police officer. 118 F. Supp. 3d 751, 756-58 (E.D. Pa.

2015). The plaintiff brought a § 1983 action against the police

officer for use of excessive force in violation of his Fourth

Amendment rights, alleging that the police officer’s deploy-

ment of the taser caused him to fall from the overpass. Id. At

summary judgment, rather than focusing “on the qualitative

characteristics of the particular type of weapon [the police of-

ficer] chose to employ,” the district court instead considered

“whether a reasonable officer would understand that attempt-

ing to effect Plaintiff’s arrest by using force that carried with it

a risk of serious injury or death violated Plaintiff’s rights.” Id.

at 765-66. Answering in the affirmative, the district court –

viewing the facts in the light most favorable to the plaintiff as

12

the non-moving party – denied the police officer summary

judgment on the grounds of qualified immunity.

In support of its finding, the court in Martin cited a num-

ber of similar excessive force cases where courts have denied

(or affirmed the denial of) a defendant’s motion for summary

judgment on the grounds of qualified immunity based on the

following fact pattern: Police tase an individual who is posi-

tioned on an elevated surface at a height that carries with it a

risk of serious injury or death, causing the individual to fall.

Id. at 766-67; accord Baker v. Union Twp., 587 F. App’x 229,

234 (6th Cir. 2014) (“It is widely known among law enforce-

ment and was even a subject of [the officer’s] police training

that tasers should not be employed against suspects on elevated

surfaces because of the risk of serious injury from a resulting

fall.”); Negron v. City of New York, 976 F. Supp. 2d 360, 368,

371 (E.D.N.Y. 2013) (noting that “[the officers] should have

known” that tasing the plaintiff – who was “standing on a

small, unenclosed ledge ten feet off the ground” – “was unrea-

sonable even despite the lack of precedent involving tasers

used under similar circumstances”); Rockwell v. Rawlins, No.

13-cv-3049, 2014 WL 5426716, at *4 (D. Md. Oct. 23, 2014)

(“While tasers may not constitute deadly force in some scenar-

ios, deadly force was clearly used in this case. [The plaintiff]

was standing on a narrow second-story ledge/roof, and there is

no evidence to suggest that a reasonable police officer would

not have expected [the plaintiff] to fall if he was tased.”) (foot-

note omitted); Peabody v. Perry Twp., No. 10-cv-1078, 2013

WL 1327026, at *5-7 (S.D. Oh. Mar. 29, 2013) (noting that a

reasonable jury could determine that the deployment of a taser

against an individual climbing an eight-foot fence could con-

stitute deadly or lethal force); Snauer v. City of Springfield, No.

09-cv-6277, 2010 WL 4875784, at *5 (D. Or. Oct. 1, 2010),

report and recommendation adopted by district judge 2010

WL 4861135 (D. Or. Nov. 23, 2010) (“[The officer] was

trained in the use of a taser and knew well that a tasered suspect

becomes temporarily paralyzed. . . . It does not take a panel of

judges to alert a reasonable police officer that causing a [tem-

porarily] paralyzed man to tumble head first onto the ground

from a platform six to seven feet above the ground creates a

substantial risk of causing death or serious bodily injury.”) (ci-

tation and internal quotations omitted); cf. Harper v. Perkins,

459 F. App’x 822, 827-28 (11th Cir. 2012) (affirming district

13

court’s denial of defendant’s motion to dismiss on the grounds

of qualified immunity because inter alia the defendant’s force

“was obviously and clearly excessive,” particularly given that

“a taser was used on a person standing with his hands in the air

at least four feet off the ground in a tree”); Cook v. Riley, No.

11-cv-24, 2012 WL 2239743, at *12 (M.D.N.C. June 15, 2012)

(recommending denial of summary judgment on the grounds

of qualified immunity in part because “[the plaintiff] was

perched on a small platform 15 feet in the air at the time of the

TASER deployment [and a] factfinder could conclude that a

reasonable officer would foresee that utilizing a TASER under

such circumstances could cause the targeted individual to fall

and thereby to suffer serious harm . . . .”) (internal citations

omitted).

While each of these cases, including Martin, concerns a

police officer tasing, as opposed to punching, an individual

vulnerable to falling from a precarious height, tasing is suffi-

ciently analogous to punching in this context such that a rea-

sonable jury could find that C.I. Haser’s actions violated a

“clearly established” right. The risk in using a taser on an in-

dividual positioned on an elevated surface is that the individual

could fall off said surface once incapacitated by the taser and

suffer serious injury or death. Officer Smith – who was with

C.I. Haser at the window – testified that it is “against protocol”

to “tase someone on the roof” because if “they fall off, that’s

not going to be good. We’re not gonna tase someone that’s on

a roof.” App. 53. The same exact logic applies to deliberately

punching someone “to stun” them, App. 187, when that person

is hanging out of a window. Cf. Martin, 118 F. Supp. 3d at

761-62 & n.8 (referring to a City of Reading Police Department

policy that “forbids officers from using a Taser when the sub-

ject is in a position where a fall may cause substantial injury or

death” as recognition of “[t]he fact that the use of a Taser –

which is ordinarily a non-lethal weapon – may, under certain

circumstances, create a risk of serious injury or death that could

make the use of the Taser under those circumstances constitu-

tionally unreasonable.”) (internal quotations omitted).

C.I. Haser urges us to adopt the District Court’s deter-

mination that tasing an individual on an elevated surface is “en-

tirely distinguishable” from punching an individual on an ele-

vated surface. Peroza-Benitez, 2020 WL 419461, at *5; see

14

Appellees’ Br. 21-23. C.I. Haser argues that he and Officer

White “were holding [Peroza-Benitez] to prevent his fall, in

fact making overt efforts to prevent [Peroza-Benitez] from fall-

ing. Here, unlike the taser cases, the stunning blows had no

effect on [Peroza-Benitez].” 5 Appellees’ Br. 21-22. But there

need not be a “precise factual correspondence between the case

at issue and a previous case” for a right to be “clearly estab-

lished.” Kopec, 361 F.3d at 778 (emphasis added) (citation and

internal quotations omitted). Tasing an individual vulnerable

to falling from a precarious height is sufficiently analogous to

repeatedly punching an unarmed individual in the head to stun

him while he is dangling from a windowsill at a precarious

height. Requiring this case to be a factual clone of a previous

case would afford C.I. Haser “one liability-free violation,” a

premise that this Court has repeatedly cautioned against. See

id. (quoting People of Three Mile Island, 747 F.2d at 145); see

also Burns, 971 F.2d at 1024.

Furthermore, C.I. Haser misconstrues the summary

judgment standard. C.I. Haser moved for summary judgment

on the grounds of qualified immunity, thus we must view the

facts in the light most favorable to the non-moving party, i.e.,

Peroza-Benitez. Under that standard, C.I. Haser “repeatedly”

punched Peroza-Benitez in the head, which “stunned and diso-

5

The District Court, as well as C.I. Haser, points to

Franklin v. McGowen, No. 17-cv-1593, 2019 U.S. Dist. LEXIS

153149 (M.D. Pa. Sept. 6, 2019), which references our deci-

sion in Santini v. Fuentes, 739 F. App’x 718 (3d Cir. 2018)

(“Santini II”), for the proposition that “there is no clearly es-

tablished law suggesting that the conduct of an officer who

strikes a non-compliant arrestee who is resisting arrest is un-

lawful.” Peroza-Benitez, 2020 WL 419461, at *4 (quoting

Franklin, 2019 U.S. Dist. LEXIS 153149, at *19); Appellees’

Br. 23; see Santini II, 739 F. App’x at 721. Yet the conduct at

issue in Santini II and Franklin did not concern a police officer

deliberately striking an individual positioned on an elevated

surface. As the fact that Peroza-Benitez was hanging from a

precarious height is crucial to framing “the specific context of

the case,” Saucier, 533 U.S. at 201, we conclude that neither

Franklin nor Santini II inform our analysis of C.I. Haser’s ac-

tions under the “clearly established” prong.

15

riented” Peroza-Benitez and caused him to fall from the win-

dow. App. 173. Additionally, while C.I. Haser testified that

he grabbed ahold of Peroza-Benitez to help him, at a certain

point C.I. Haser said to himself, “screw it, you want to fall,

you’re gonna fall. So we let go of him.” App. 187. While the

timing of C.I. Haser’s decision to let go of Peroza-Benitez rel-

ative to punching him is unclear – as is the effect that the

punches had on Peroza-Benitez’s ability to, for example, climb

back through the window or blunt his landing – we must view

the facts in the light most favorable to Peroza-Benitez. Under

that standard, C.I. Haser’s punches caused Peroza-Benitez to

fall, and whether C.I. Haser was helping Peroza-Benitez mo-

ments before is irrelevant to our analysis at this stage of the

proceedings.

In short, there was a “clearly established” right at the

time for an injured, visibly unarmed suspect to be free from

temporarily paralyzing force while positioned as Peroza-Beni-

tez was. A reasonable jury, on this record, could conclude that

C.I. Haser “repeatedly” punched Peroza-Benitez in the head

and caused him to fall from a second-story window, in viola-

tion of that right. Or a jury could conclude that the facts do not

support Peroza-Benitez’s account of the incident. But if a jury

credited Peroza-Benitez’s version, then Peroza-Benitez’s

“clearly established” right was violated. Thus there is a genu-

ine dispute of material fact regarding C.I. Haser’s conduct,

which must be resolved by a jury. So we will vacate the Dis-

trict Court’s finding that C.I. Haser was entitled to qualified

immunity and remand for further proceedings.

2.

As to Officer White, the District Court held that he was

entitled to qualified immunity because his “use of non-lethal

force in the form of a single tase to [Peroza-Benitez], regard-

less of whether or not [Peroza-Benitez] was armed and whether

or not he was unconscious in the moments after falling and be-

ing tased, cannot be considered a violation of any clearly es-

tablished precedent.” Peroza-Benitez, 2020 WL 419461, at *7.

We disagree.

The District Court defined Peroza-Benitez’s right as

“the Fourth Amendment right to be free from excessive use of

force in the form of the use of a taser while not visibly armed

16

(but after the acting officer was informed moments earlier by a

fellow officer that [Peroza-Benitez] was armed and in active

flight), while laying on the ground after having fallen from a

window through which he had attempted to flee and been ren-

dered temporarily unconscious, and after having made no fur-

ther attempt to flee after hitting the ground.” Id. at *5. While

the District Court “assume[d] [Peroza-Benitez] made no fur-

ther movements [upon landing] and was knocked temporarily

unconscious,” it notably concluded in its analysis that Peroza-

Benitez’s “degree of consciousness after hitting the ground is

irrelevant” because Officer White “made a quick decision, de-

ploying his taser immediately, essentially simultaneously with

[Peroza-Benitez] hitting the ground.” 6 Id. at *6-7. But the con-

sciousness of Peroza-Benitez is not irrelevant to the analysis;

6

The District Court’s definition of Peroza-Benitez’s

right seemingly did not turn on whether Peroza-Benitez was

armed when tased. Peroza-Benitez, 2020 WL 419461, at *7.

However, the District Court concluded in its analysis that “it

was reasonable for [Officer White] to believe that, once

[Peroza-Benitez] hit the ground, he was armed and would con-

tinue his attempt to escape.” Id. A court’s role at summary

judgment is “to determine whether there is a genuine issue for

trial,” and “not . . . to weigh the evidence and determine the

truth of the matter.” Baloga v. Pittston Area Sch. Dist., 927

F.3d 742, 752 (3d Cir. 2019) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986)). The question is whether it was

reasonable for Officer White to believe under the circum-

stances that Peroza-Benitez was armed at the time. And here,

that is a question for the jury: According to Peroza-Benitez, he

was wearing only boxer shorts and had been hanging onto the

windowsill with both hands, which could make visible to a rea-

sonable officer that he was unarmed. Cf. Russell v. Richard-

son, 905 F.3d 239, 252 (3d Cir. 2018) (“[The victim] allegedly

exited his room wearing only underwear, making it implausible

to a reasonable officer that he was hiding a weapon on his per-

son.”); Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir.

2010) (noting that “it should have been apparent that [the plain-

tiff] was unarmed” given that he “was only dressed in tennis

shoes and boxer shorts”). But a jury could also find, for exam-

ple, that Officer White, standing on the sidewalk, could not

clearly see the front waistband of Peroza-Benitez’s boxer

17

it is critical. Viewing the facts in the light most favorable to

Peroza-Benitez – again, as we must do at summary judgment –

Peroza-Benitez was tased by Officer White while lying uncon-

scious after having fallen over 10 feet into a below-ground,

concrete stairwell. The duration of time that elapsed between

Peroza-Benitez hitting the ground and getting tased does not

change the fact that, in the light most favorable to Peroza-Be-

nitez, he was tased while visibly unconscious and after multi-

ple seconds had elapsed, App. 264, such that a reasonable jury

could find that Officer White should have known that he was

tasing an unconscious individual. 7 Thus, Peroza-Benitez’s

shorts. Or that Peroza-Benitez was wearing a shirt when hang-

ing onto the windowsill, which obscured his waistband. Either

example could make it reasonable for Officer White to believe

Peroza-Benitez might still be armed.

7

To the extent that Officer White relies on the fact that

Peroza-Benitez had been leading officers on a chase, this does

not change our analysis. The fact that police may be justified

to use force against a fleeing suspect one second, does not nec-

essarily mean that they are justified in using the same degree

of force once that individual no longer poses a threat. Cf. La-

mont v. New Jersey, 637 F.3d 177, 184 (3d Cir. 2011) (“Even

where an officer is initially justified in using force, he may not

continue to use such force after it has become evident that the

threat justifying the force has vanished.”) (citation omitted);

Anthony v. Seltzer, 696 F. App’x 79, 82-83 (3d Cir. 2017) (not-

ing the existence of pre-2013 precedent in support of the “long-

established Fourth Amendment law, [that] force may not legit-

imately be used against an individual who is compliant and

poses no ongoing threat to himself or others, or who is not re-

sisting arrest, even if he was initially non-compliant” and hold-

ing that “the continued application of force to an unthreatening

and subdued individual suffering a seizure constituted an un-

reasonable use of force under the Fourth Amendment”). Ad-

ditionally, a reasonable jury could conclude that the police pur-

suit of Peroza-Benitez had come to an end, and Peroza-Benitez

no longer posed a threat to officers. See, e.g., App. 97-99, 108

(Officer White testified that he holstered his firearm while

Peroza-Benitez hung from the window as he believed that “the

situation was becoming more contained” and Peroza-Benitez

was “figuratively boxed in”). Or, of course, a reasonable jury

18

right at issue boils down to the following: The Fourth Amend-

ment right to be free from excessive force in the form of being

tased while visibly unconscious.

There is a “robust consensus of cases” that support the

proposition that tasing a visibly unconscious person – who just

fell over ten feet onto concrete – is a violation of that person’s

Fourth Amendment rights. See, e.g., Wimett v. Sothern, No.

12-cv-01406, 2014 WL 4059768, at *14 (D. Or. Aug. 14,

2014) (“[The plaintiff’s] right not to suffer multiple TASER

cycles while unconscious was clearly established. Any reason-

able officer would understand that using a TASER in dart

mode to cycle current through an unconscious person multiple

times is excessive. . . . [A]n unconscious suspect poses no dan-

ger to the arresting officer or others.”) (citing Bryan v. Mac-

Pherson, 630 F.3d 805 (9th Cir. 2010) and Mattos v.

Agarano, 661 F.3d 433 (9th Cir. 2011)); Smith v. City & Cnty.

of Denver, No. 07-cv-00154, 2008 WL 724629, at *7 (D. Colo.

Mar. 18, 2008) (“[U]nder the Tenth Circuit’s sliding scale . . .

it was clearly established that an officer may not tase an un-

conscious suspect. Although Plaintiff has not supplied a cita-

tion to a factually similar case, I think that it is particularly

clear from Graham [v. Connor, 490 U.S. 386 (1989)] itself that

it is a Fourth Amendment violation to tase an unconscious sus-

pect.”) (internal quotations and citation omitted); cf. Simmons

v. Hinton, No. 13-cv-2566, 2015 WL 1041583, at *4, *6 (D.

Colo. Mar. 5, 2015) (denying summary judgment on the

grounds of qualified immunity, in part because “a reasonable

officer would not have reason to believe that a person who had

already been tased once and was lying motionless on the

ground posed an immediate threat to the officer’s safety” and

“a reasonable law enforcement officer would have known that

these actions [i.e., continued tasing, as well as punching and

kneeing], in the face of nonresistance, constituted excessive

force”) (emphasis omitted); Gray v. Torres, No. 08-cv-1380,

2009 WL 2169044, at *4 (D. Md. July 17, 2009) (denying sum-

mary judgment on the grounds of qualified immunity for a po-

lice officer who deployed his taser a second time after his first

could reach the opposite conclusion and find that the chase was

still in progress given officer testimony that Peroza-Benitez

voluntarily moved upon landing. See, e.g., App 262, 68. But

again, this is a question that the jury must resolve.

19

tase knocked an individual “unresponsive and motionless,” and

noting that “[i]f [the victim] was attempting to comply with

[the police officer’s] orders before the first tase and was mo-

tionless and unresponsive with his hands by his side after the

first tase, [the police officer] would not be entitled to qualified

immunity”). 8

We acknowledge that “[t]here must be ‘allowance for

the fact that police officers are often forced to make split-sec-

ond judgments – in circumstances that are tense, uncertain, and

rapidly evolving – about the amount of force that is necessary

in a particular situation.’” El v. City of Pittsburgh, 975 F.3d

327, 342 (3d Cir. 2020) (quoting Graham, 490 U.S. at 396-97).

But that premise, while paramount to explaining the challenges

that police officers face on the job, does not entitle a police

officer to circumvent the law, or bypass the qualified immunity

inquiry. That being said, we hold that the right not to be tased

while visibly unconscious was “clearly established” at the time

and that a reasonable jury could find that Officer White vio-

lated this right. To be sure, a jury could find that the facts do

not support Peroza-Benitez’s account – for example, by finding

that Peroza-Benitez was not unconscious and was still trying

to flee, that Officer White reasonably believed Peroza-Benitez

was armed, or that there was not enough time for Officer White

to recognize that Peroza-Benitez was unconscious. But if a

jury credited Peroza-Benitez’s version of events, then Peroza-

Benitez’s “clearly established” right was violated. Thus, here

too we have a genuine dispute of material fact for the jury to

8

Peroza-Benitez also cites Tennyson v. Hatton, in

which the district court – in denying defendant’s motion to dis-

miss on qualified immunity grounds – concluded that “[a] rea-

sonable law enforcement officer would know that using a taser

on an unresisting, unconscious person was unreasonable force

and that an officer observing such a use of excessive force has

a duty to prevent the harm.” No. 16-cv-1206, 2018 WL

4630213, at *5 (E.D. Tex. July 9, 2018), report and recommen-

dation adopted by district judge 2018 WL 3993395 (E.D. Tex.

Aug. 19, 2018); Appellant’s Br. 32. While Tennyson was de-

cided after the events before us on appeal, and thus could not

have put Officer White on notice, we note that the right at issue

in Tennyson concerned an incident that occurred less than 20

days after the incident here.

20

resolve, and we will vacate the District Court’s finding that Of-

ficer White was entitled to qualified immunity and remand for

further proceedings.

IV.

Pursuant to 28 U.S.C. § 1367(c), the District Court de-

clined to exercise supplemental jurisdiction over Peroza-Beni-

tez’s remaining state law battery claims. We direct the District

Court to reconsider on remand the question of supplemental

jurisdiction in light of our decision to reinstate Peroza-Beni-

tez’s § 1983 claims. See Santini I, 795 F.3d at 421.

V.

For these reasons, we will vacate the order of the Dis-

trict Court granting summary judgment in favor of C.I. Haser

and Officer White on the grounds of qualified immunity and

remand for further proceedings consistent with this opinion. 9

9

We do not find it necessary to reach the first prong of

the qualified immunity test for either C.I. Haser or Officer

White and leave it to the District Court to address on remand.

21