Brad Rush v. City of Philadelphia

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 21-1298

________________

BRAD RUSH, As Administrator of the Estate of Jeffrey

Dennis, Deceased.

v.

CITY OF PHILADELPHIA;

OFFICER RICHARD NICOLETTI, In his individual and

official capacity,

Officer Richard Nicoletti,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No.: 2-19-cv-00932)

District Judge: Honorable Joshua D. Wolson

Argued March 13, 2023

Before RESTREPO, AMBRO, and FUENTES, Circuit

Judges

(Opinion filed: August 30, 2023)

Shane Haselbarth [ARGUED]

MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN

2000 Market Street

Suite 2300

Philadelphia, PA 19103

Counsel for Appellant Officer Richard Nicoletti

James P. Davy [ARGUED]

ALL RISE TRIAL & APPELLATE

1602 Frankford Ave.

P.O. Box 15216

Philadelphia, PA 19125

John J. Coyle

MCELDREW PURTELL

123 South Broad Street

Suite 2250

Philadelphia, PA 19109

Counsel for Appellee Brad Rush

Craig R. Gottlieb

CITY OF PHILADELPHIA LAW DEPARTMENT

1515 Arch Street

2

17th Floor

Philadelphia, PA 19102

Counsel for Appellee City of Philadelphia

_________________

OPINION OF THE COURT

__________________

3

RESTREPO, Circuit Judge

As a reviewing court, we must often avoid the

temptation to delve into factual inquiries that are beyond our

ken. Our jurisdictional rules require us to exercise such

restraint in reviewing this interlocutory appeal, taken from the

denial of qualified immunity to a Philadelphia Police officer

who fatally shot an unarmed driver suspected of criminal

activity in August 2018.

During execution of a warrant, six plainclothes officers

in unmarked police cars surrounded Mr. Jeffrey Dennis’s

vehicle at an intersection in West Philadelphia. Over the

course of 48 seconds, Mr. Dennis attempted to free his car,

bumping into the surrounding police vehicles. At one point,

Mr. Dennis’s car appeared to have stopped moving, and

Officer Richard Nicoletti shot Mr. Dennis three times through

the driver’s side window. Mr. Dennis died at the scene.

Although the incident was captured on video by a

security camera, the District Court on summary judgment

found open questions of fact as to Mr. Dennis’s estate’s

excessive force claims against the City of Philadelphia (the

“City”) and Officer Nicoletti; most notably, regarding whether

Mr. Dennis posed a threat to the officers or public safety. The

Court viewed the facts in the light most favorable to Mr.

Dennis and denied Officer Nicoletti qualified immunity. It

held that officer conduct including “sho[oting] at an unarmed

driver attempting to escape at slow speed who had hit a car,”

and/or “using deadly force against an individual driving a car”

when “the driver did not pose a threat to the safety of the officer

or others,” violated clearly established law.

The thrust of Officer Nicoletti’s challenge to that

determination is unmistakably factual, premised on a

disagreement with the District Court’s ruling that a reasonable

4

jury could conclude that Mr. Dennis posed no threat to officer

or pedestrian safety. However, this is an interlocutory appeal

of a denial of qualified immunity and our jurisdiction is

constrained to the review of legal questions only. To the extent

that any of Officer Nicoletti’s arguments could be construed to

articulate a legal challenge to the District Court’s holding that

his conduct violated clearly established law, we will affirm that

holding.

I. BACKGROUND

A. Relevant Facts

In August 2018, Philadelphia Police obtained a search

warrant for the house where Mr. Dennis resided, suspecting

that the house was being used for drug activity. On August 20,

several officers, including Officer Nicoletti, visited Mr.

Dennis’s house to execute the warrant, but he was not home.

Officers performing the surveillance—Nicoletti, Bogan,

Fitzgerald, Galazka, Sumpter, Sergeant Shuck, and Lieutenant

Muldoon (the “Officers”)—were in plain clothes “to maintain

an advantage” while on the scene. App. at 33. They spotted

Mr. Dennis driving near his house and decided to stop his car.

The description of what happened next is primarily based on

the District Court’s recitation of the facts, supplemented by a

video of the incident that was captured by a nearby surveillance

camera, and is viewed in the light most favorable to Mr.

Dennis. The video reflects the following:

1. Initiation of the Stop

5

While Mr. Dennis’s vehicle is stopped at a red light at

an intersection on a narrow one-way street, 1 an unmarked

police car pulls up travelling the wrong way and blocks Mr.

Dennis’s path from the front. As the District Court noted, there

were not “any civilian cars or pedestrians in the immediate

vicinity.” App. at 14. 2

Once blocked in from the front, Mr. Dennis reverses his

car. However, officers had also blocked him in with another

unmarked police car from behind. The front police car then

advances to close him in even more tightly. Although he has

been left very little space within which to maneuver, Mr.

Dennis moves his car forward and back, attempting to free it,

and bumps at slow speed between the unmarked police cars in

front and behind him several times in the process.

Six of the Officers—Nicoletti, Bogan, Fitzgerald,

Galazka, Sumpter, and Sergeant Shuck—emerge from the

surrounding unmarked cars and approach Mr. Dennis’s vehicle

1

Officer Nicoletti does not dispute that Sergeant Shuck

“believed this area would be best for civilian and officer

safety” because Mr. Dennis “would have nowhere to go on a

one-way street.” App. at 34.

2

The video reflects that it is indeed a relatively slow

intersection; two or three cars pass by in the background on the

road perpendicular to the incident throughout the 48-second

interaction. The video shows that several pedestrians stop after

the incident. However, while it is taking place, there are no

pedestrians anywhere near the scene except for a woman who

appears to be watching from the far side of the two-way cross

street throughout and out of harm’s way. The Officers testified

that there were pedestrians just out of view of the camera

around the corner, but they are not visible in the video.

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quickly, most with guns drawn. These officers are not in

uniform. 3 Mr. Dennis again moves his car forward, and

collides slowly with the police car in front of him. Mr.

Dennis’s vehicle does not move for approximately fifteen

seconds, during which time the Officers have their weapons

pointed at him. Officer Fitzgerald appears to try to open the

driver’s side door. The Officers look from the video to be

speaking to Mr. Dennis during this time, though the video has

no sound.

Officer Galazka then runs over and smashes Mr.

Dennis’s driver’s side window with a metal tool. After the

window is broken, Mr. Dennis begins moving again, haltingly;

he turns his vehicle to the right, in an attempt to creep over the

curb and flee in that direction. Officer Bogan, who was

situated on the passenger side of Mr. Dennis’s vehicle, testified

that at this point he saw Mr. Dennis reach to his right side near

the center console. While Officer Bogan testified that he

“could not see [Dennis’s] hand,” he alerted the other Officers

that Mr. Dennis was “reaching.” App. at 173. None of this is

clearly visible from the video. Mr. Dennis maneuvers his car

further to the right, and Officer Bogan, who was standing on

the sidewalk, steps directly into its path. 4 Mr. Dennis advances

the car forward slowly, and Officer Bogan immediately steps

out of the way.

3

The District Court’s recitation of the facts did not note that

Officer Sumpter, who is standing behind the cars and out of

Mr. Dennis’s view, is wearing street clothes with a vest that

says “POLICE” on it. App. at 278 – 00:22.

4

During his deposition, Sergeant Schuck testified that it is a

likely violation of Philadelphia Police directives for an officer

to put himself in front of a moving vehicle.

7

2. Officer Fitzgerald Tries to Grab the Keys

Officer Fitzgerald then reaches into the broken driver’s

side window to try to grab the keys out of the ignition. 5 Mr.

Dennis reverses his vehicle while Officer Fitzgerald’s arm is

still in it. Officer Fitzgerald does not remove his arm from the

window, and appears to be pulled along with the car as it moves

slowly forward once and backward once, though he remains on

his feet throughout. As the District Court noted, it is difficult

to tell from the video whether Officer Fitzgerald was at any

point “pinned” between Mr. Dennis’s vehicle and the front

police car, as Officer Nicoletti claims. 6 App. at 7. Officer

Fitzgerald jogs away after he abandons his attempt to grab the

keys and stands over to the side away from the action, looking

winded.

5

During Officer Fitzgerald’s deposition, Mr. Dennis’s counsel

noted that this tactic likely violates [Philadelphia Police

Department] Directive 12.8, which states that “it is highly

recommended that an officer never reach into an occupied

vehicle, in an attempt to shut off the engine, or to recover

evidence, since this has been known to result in serious injury

to officers. Only in exigent circumstances should this tactic be

used, e.g., the driver is unconscious and the motor is still

running.” App. at 108–09. Officer Fitzgerald responded that

he felt this was one such exigent circumstance, given how

“extremely busy” the intersection was. Id. at 109.

6

From the video alone, it does not appear that the front

unmarked police car was indisputably close enough to do so.

Officer Fitzgerald testified that he yelled from pain and was

transported to the hospital via ambulance, but none of this is

evident from the video.

8

Mr. Dennis backs his car up once more, appearing to be

lining it up to escape to the left. Officer Bogan, who was

previously standing in the vehicle’s way, holsters his weapon

as Mr. Dennis’s car turns away from him. Mr. Dennis

accelerates forward, with slightly more speed than in prior

attempts to elude the Officers. However, the driver of the front

police car simultaneously accelerates towards him in an

attempt to block him, and the cars collide with some force.

Both cars shake from the impact; the dislodged front bumper

of Mr. Dennis’s car—which looks to have been previously

damaged when he drove over the curb—flaps from hitting the

front car. Mr. Dennis’s vehicle comes to a complete stop; it is

abutting the front police car nearly head-on and it does not

appear from the video that it could advance further forward.

3. Officer Nicoletti Discharges His Weapon

Officers Fitzgerald and Bogan begin to approach Mr.

Dennis’s vehicle, weapons down, as it has stopped moving and

appears fully stuck. As they are doing so, Officer Nicoletti,

standing directly adjacent to the driver’s side window,

discharges his weapon three times through the side window at

Mr. Dennis. The District Court found that Officer Nicoletti

shot two seconds after the cars collided, that Mr. Dennis’s car

“was pointed away from any of the officers on foot,” and that

no other officers had their guns drawn at the time. 7 App. at 8.

Mr. Dennis was pronounced dead at the scene, and no weapon

was recovered from his vehicle.

7

This is difficult to confirm solely based on the video, though

Sergeant Shuck—who was standing next to Nicoletti

throughout—had holstered his weapon previously, and he

testified that he was not holding it when Nicoletti discharged.

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B. Procedural History

Plaintiff-Appellee Brad Rush, on behalf of Mr. Dennis’s

estate, brought claims in state court against Officer Nicoletti—

in both his official and individual capacities—for excessive

force under 42 U.S.C. § 1983, against the City under Monell v.

Department of Social Services, 436 U.S. 658 (1978), as well as

state law assault and battery claims. Officer Nicoletti

subsequently removed to the Eastern District of Pennsylvania.

Both Defendants sought summary judgment after discovery,

which the District Court rejected on all counts, except for the

official capacity claim against Officer Nicoletti. Officer

Nicoletti’s timely appeal challenging the denial of his qualified

immunity claim followed. 8 The City did not submit its own

briefs, and merely concurred with those of Officer Nicoletti.

II. JURISDICTION

Subject matter jurisdiction in the District Court was

proper under 28 U.S.C. §§ 1331 and 1343(a)(3).

This Court’s jurisdiction to hear Officer Nicoletti’s

appeal is a more complicated affair, as it “depends on whether

we may treat the District Court’s order” denying qualified

immunity “as a ‘final decision.’” Blaylock v. City of Phila.,

504 F.3d 405, 408 (3d Cir. 2007) (quoting 28 U.S.C. § 1291).

The collateral order doctrine dictates that “an interlocutory

order of a district court may be treated as a ‘final decision’ if

it: ‘(1) conclusively determine[s] the disputed question, (2)

resolve[s] an important issue completely separate from the

8

Only Officer Nicoletti filed a notice of appeal; the City did

not, and accordingly entered an appearance as an Appellee in

this matter.

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merits of the action, and (3) [is] effectively unreviewable on

appeal from a final judgment.’” Id. (quoting Johnson v. Jones,

515 U.S. 304, 310 (1995)) (alteration in original).

In summary, our jurisdiction over this interlocutory

appeal is limited to resolving legal questions, not factual

questions. See Johnson, 515 U.S. at 316–18. Yet, the bulk of

Officer Nicoletti’s arguments relate to a factual question:

whether the District Court correctly concluded that a

reasonable jury could find that Mr. Dennis posed no threat to

surrounding officers or public safety. While Officer Nicoletti

attempts to invoke an exception to this jurisdictional bar where

contemporaneous video “blatantly contradicts” the facts found

by the District Court, we have reviewed the accompanying

video in this case and see no such contradiction. As such, our

jurisdiction extends only to the legal questions raised in Officer

Nicoletti’s briefs; namely, accepting the District Court’s

definition of his conduct, whether he violated clearly

established law.

A. Limited Jurisdiction Over Interlocutory

Review of Qualified Immunity

Where an interlocutory order challenges denial of

qualified immunity, a reviewing court has jurisdiction over an

appeal only to the extent that it “raises pure questions of law,”

as opposed to where it “challenges the District Court’s

determination of which facts were sufficiently supported by

evidence.” Blaylock, 504 F.3d at 409. Put another way, we

cannot consider the factual question of “whether the district

court correctly identified the set of facts that the summary

judgment record is sufficient to prove.” Ziccardi v. City of

Phila., 288 F.3d 57, 61 (3d Cir. 2002). However, we may

review the legal question of whether those facts, so assumed,

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are “sufficient to establish a violation of a clearly established

constitutional right.” Id. (citation omitted).

As the Supreme Court has explained, this is because

where the first prong of the qualified immunity analysis—

determining whether the conduct at issue violated the

Constitution—depends on contested material facts, its

resolution will be functionally inseparable from the merits of

the case. See Johnson, 515 U.S. at 310–11, 318 (citing Puerto

Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.

139, 144 (1993)); Monteiro v. City of Elizabeth, 436 F.3d 397,

405 (3d Cir. 2006) (“when qualified immunity depends on

disputed issues of fact, those issues must be determined by the

jury”). Meanwhile, the second prong of the analysis—whether

the conduct violated clearly established law—relates to the

independent issue of immunity and may be determined

separately from the merits. Johnson, 515 U.S. at 311–12; see

also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“The

entitlement is an immunity from suit rather than a mere defense

to liability; and like an absolute immunity, it is effectively lost

if a case is erroneously permitted to go to trial.”).

Relevant to this discussion, the key facts the District

Court identified as sufficient to defeat summary judgment,

which it construed in the light most favorable to Mr. Dennis,

are that:

• “By the time Officer Nicoletti shot [Mr. Dennis], his car

had stopped moving, as the City’s own investigation

concluded. Even if it were moving, no one was in its

immediate path.”

• “Although Officer Nicoletti claims that he fired because

Officer Bogan was in danger, Officer Bogan was on the

passenger side of the car and had holstered his weapon,

which suggests he did not perceive a threat to himself.”

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• “Nor were there any civilian cars or pedestrians in the

immediate vicinity who Mr. Dennis might have

threatened.”

• “Mr. Dennis’s hand motions might have raised a

concern that he was reaching for a gun, or a factfinder

could conclude that a reasonable officer would have

perceived Mr. Dennis to be shifting gears.”

App. at 13–14. Accordingly, the District Court

concluded that “Mr. Dennis did not pose an immediate threat

to any officer or civilian,” and a reasonable factfinder could

therefore conclude that Officer Nicoletti’s use of lethal force

was not justified. Id. at 13.

In effect, the District Court determined “that there is

sufficient record evidence to support a set of facts under which

there would be no immunity” for Officer Nicoletti, and, as an

appellate body, “we must accept that set of facts on

interlocutory review.” Blaylock, 504 F.3d at 409 (citing

Schieber v. City of Phila., 320 F.3d 409, 415 (3d Cir. 2003)).

As such, “we may review the District Court’s conclusion that

the defendants would not be immune from liability if those

facts were proved at trial,” as this is a purely legal question. Id.

We will conclude below that the latter analysis is

straightforward under Third Circuit law: if Mr. Dennis proves

the set of facts articulated by the District Court, Officer

Nicoletti would not be immune from suit.

B. The Scott v. Harris Exception

There is one notable—though ultimately inapplicable—

exception to this jurisdictional bar to an appellate court’s

factual review, which is where it finds that the record “blatantly

contradict[s]” a district court’s account of the facts. Scott v.

Harris, 550 U.S. 372, 380 (2007). This situation typically

13

arises where there is contemporaneous video of the incident,

and may effectively allow a reviewing court to redefine the

conduct at issue in its qualified immunity analysis. Despite

Officer Nicoletti’s protestations to the contrary, we have

performed an independent review of the video in this case, and

the exception does not apply here. We are therefore bound to

accept the version of Officer Nicoletti’s conduct articulated by

the District Court.

In Scott v. Harris, a police officer rammed the vehicle

of a fleeing motorist, causing the motorist to lose control of his

vehicle and crash. 550 U.S. at 375. The District Court had

denied the officer qualified immunity, finding a genuine

dispute of material fact as to whether the motorist presented an

immediate threat to the safety of others, and the Eleventh

Circuit affirmed. Id. at 376. The Supreme Court reversed,

explaining that “[f]ar from being the cautious and controlled

driver the lower court depict[ed],” a contemporaneous video of

the incident reflected “a Hollywood-style car chase of the most

frightening sort,” and, as such, there was no genuine dispute

that the driver indeed presented an immediate threat to others.

Id. at 378–80; see also Davenport v. Borough of Homestead,

870 F.3d 273, 280 (3d Cir. 2017) (reversing as “blatantly

contradicted by the [video] record” district court conclusion

that, based on driver’s version of facts, jury could find that

driver posed no serious threat of immediate harm to others).

This principle was later extended more broadly to where the

district court made “blatantly and demonstrably false” factual

determinations, not solely based on comparison to a

contemporaneous video. Plumhoff v. Rickard, 572 U.S. 765,

771, 777–78 (2014) (holding that where record “conclusively

disprove[d]” lower court finding that petitioner posed no threat

14

to officers, reviewing court had jurisdiction to redefine the

right at issue to incorporate threat posed by driver). 9

However, where there is no such “blatant

contradiction,” we lack jurisdiction over factual challenges to

the definition of the right at issue in evaluating qualified

9

Throughout his briefing, Officer Nicoletti abstractly relies on

Plumhoff as a basis to disregard certain of the District Court’s

findings of disputed material fact—which were based on

review of the contemporaneous video—where they contradict

the Officers’ record testimony. This is an overbroad reading

of Plumhoff, as the Supreme Court there largely looked to

undisputed record facts—for example, that the shooting was

preceded by a car chase at speeds over 100 miles per hour, and

at the time of the discharge the wheels of the driver’s vehicle

were spinning—in disagreeing with the district court as to the

threat posed. 572 U.S. at 769, 776; Est. of Allen v. City of W.

Memphis, No. 05-2489, 2011 WL 197426, at *3 (W.D. Tenn.

Jan. 20, 2011), aff’d in part, 509 F. App’x 388 (6th Cir. 2012),

rev’d and remanded sub nom. Plumhoff v. Rickard, 572 U.S.

765 (2014). Meanwhile, here, the District Court noted that

where “the victim of deadly force is unable to testify,” courts

“should be cautious to ensure that the officer is not taking

advantage of the fact that the witness most likely to contradict

his story—the person shot dead—is unable to testify.” App. at

10 (quoting Abraham v. Raso, 183 F.3d 279, 294 (3d Cir.

1999)) (cleaned up). The District Court appropriately

“avoid[ed] simply accepting ‘what may be a self-serving

account by the officer,’” and looked to “circumstantial

evidence that, if believed, would tend to discredit the police

officer’s story, and consider whether this evidence could

convince a rational fact finder that the officer[s] acted

unreasonably.” Id. (quoting Abraham, 183 F.3d at 294).

15

immunity—including as to whether a victim of excessive force

was a threat to officers or the public. See El v. City of

Pittsburgh, 975 F.3d 327, 337–38 (3d Cir. 2020) (holding

where appellate review of a contemporaneous video reveals

that “the District Court did not make any demonstrably false

findings about how the events unfolded,” the “narrow” Scott v.

Harris exception does not apply). In El v. City of Pittsburgh,

the District Court had defined the right at issue as the Fourth

Amendment right to be free from unreasonable seizure in the

form of excessive police force where, “during an investigatory

stop for a minor offense, [plaintiff] stands up and takes one or

two small steps towards a police officer, standing a few feet

away, in a non-threatening manner.” Id. at 337.

The officer in El quarreled with this definition—citing,

for example, that one of the victims of excessive force had

pointed at an officer and ignored a gesture to sit back down,

suggesting that the individual was threatening. Id. at 338.

However, the majority noted that this was not a fact included

in the District Court’s recitation of the summary judgment

record, and that viewing that gesture as threatening was merely

“one interpretation of what happened.” Id. Having found

specifically that “the District Court’s finding that [plaintiff]

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

the majority concluded that an articulation of the right at issue

which would have found the victim of police force to be

threatening, “is not available to us within the limits of our

jurisdiction.” Id. at 337–38.

Officer Nicoletti invokes the Scott v. Harris exception,

asserting that no jury could find that Mr. Dennis was not a

threat to others. He does this by attempting to construe the

District Court’s determination that Mr. Dennis was not a threat

as a legal conclusion that we have jurisdiction to review.

However, this argument is foreclosed by our precedential

16

opinion in El, as he is likewise unable to show that the District

Court made “demonstrably false findings about how the events

[in question] unfolded.” Id. at 337. As such, he cannot pry

open the door to factual interlocutory review under the Scott v.

Harris exception. Id.

Specifically, Officer Nicoletti asserts that the District

Court’s recitation of the facts—and particularly its ultimate

conclusion that Mr. Dennis did not necessarily pose a threat—

“blatantly contradicts the record and the video.” Nicoletti Br.

at 25. He alleges that these sources irrefutably reflect Mr.

Dennis “violently driving his car backwards and forwards at

officers, damaging two vehicles (in addition to his own),

wrenching the knee of Officer Fitzgerald . . . , and ignoring

unmistakable, repeated, and lawful orders to surrender.” Id.

Officer Nicoletti also challenges the District Court’s view that

there were no civilian cars or pedestrians in the vicinity, and

that at the time he was shot, Mr. Dennis’s car had stopped

moving and no one was in its immediate path. We disagree

that any of these facts is irrefutably demonstrated from either

the record or the contemporaneous video, viewing them in the

light most favorable to Mr. Dennis. As with El, while Officer

Nicoletti offers merely one of several possible

“interpretation[s]” of the events that unfolded, we are bound to

choose the interpretation most favorable to Mr. Dennis. El,

975 F.3d at 337.

For example, a reasonable jury could find that Mr.

Dennis was at no point driving violently “at officers.” Nicoletti

Br. at 25. Mr. Dennis was blocked in, had very little space

within which to maneuver his car, and was unable to

meaningfully accelerate at any point. Officers were clearly

able to step out of the way whenever Mr. Dennis’s car was

positioned towards them.

17

We agree with the District Court that the video is also

inconclusive as to what happened to Officer Fitzgerald’s knee;

the view of his lower body is obstructed by Mr. Dennis’s car

in the video, and he does not clearly appear to be limping until

after Officer Nicoletti discharged his weapon.

The video is also without sound, and while one can

observe the officers’ mouths moving, it is far from undisputed

that Mr. Dennis was aware that the plainclothes officers in

unmarked cars were law enforcement, or that he heard or

understood their “orders to surrender” and elected to ignore

them. Nicoletti Br. at 25.

The District Court’s conclusion that there were no

pedestrians nearby is also far from demonstrably false. The

single visible pedestrian prior to the discharge is far out of the

way across a broad intersection. Further, while Officer

Nicoletti points to the fact that there are more pedestrians on

the scene after the discharge, a reasonable jury could easily

find this was only due to the attention drawn from the incident

itself.

Lastly, Officer Nicoletti argues that the video clearly

“shows a dangerous criminal set on escape, recklessly

endangering anyone who might happen by.” Id. at 34.

However, we agree with the District Court’s conclusion that

Mr. Dennis’s car had stopped at the time that shots were fired,

and that Mr. Dennis was not unquestionably “set on escape” at

any cost in the moment before Officer Nicoletti killed him.

Because we find that the District Court’s recitation of

the facts is not “blatantly contradicted” by the record in this

case, we are not permitted to deviate from those facts in

reviewing its denial of qualified immunity. We must

accordingly accept the District Court’s conclusion that,

viewing the facts in the light most favorable to Mr. Dennis as

the nonmovant, he was not a threat to nearby officers or

18

pedestrians. As this bears on the scope of our jurisdiction, we

are confined in this appeal to address only those of Officer

Nicoletti’s arguments that do not challenge this threat

determination. In this case, that leaves whether Officer

Nicoletti’s conduct, so defined, violated clearly established

law. The rest of his disagreements will be left for the jury to

resolve.

III. ANALYSIS

A. Standard of Review

We exercise plenary review over a district court’s grant

of summary judgment, and we apply the same standard as the

district court. Adams v. Zimmer US, Inc., 943 F.3d 159, 163

n.4 (3d Cir. 2019). “Summary judgment is appropriate where,

construing all evidence in the light most favorable to the

nonmoving party, ‘there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.’” Sec’y U.S. Dep’t of Labor v. Kwasny, 853 F.3d 87,

90 & n.5 (3d Cir. 2017) (quoting Fed. R. Civ. P. 56(a)). A

genuine issue of material fact is one that could lead a

reasonable jury to find in favor of the nonmoving party. Willis

v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 643

(3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986)). To the extent we have jurisdiction under the

collateral order doctrine—for example, over legal questions

like whether conduct violates clearly established law—we

exercise plenary review. See Dougherty v. Sch. Dist. of Phila.,

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

B. Qualified Immunity

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At root, Mr. Dennis’s estate claims that Officer

Nicoletti’s use of lethal force was unreasonable under the

Fourth Amendment and that he is liable under 42 U.S.C. § 1983

for damages. “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.” El, 975 F.3d at 336 (quoting Rivas, 365

F.3d at 198) (cleaned up). However, qualified immunity

exonerates even unreasonable officer conduct unless (1) the

officer violated a constitutional right, and (2) 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) (quoting Saucier

v. Katz, 533 U.S. 194, 201–02 (2001)) (alteration in original).

Having sifted through those arguments raised by Officer

Nicoletti that are jurisdictionally barred, we are left with a

relatively straightforward merits question: accepting the

District Court’s factual recitation, was it correct in finding

Officer Nicoletti unentitled to qualified immunity? It was.

The District Court defined the constitutional right

violated here as the right to be free from unreasonable use of

lethal force, specifically where an officer “sho[ots] at an

unarmed driver attempting to escape at a slow speed who had

hit a car,” and/or “us[es] deadly force against an individual

driving a car,” from the side window while the car was moving

away from the officer, “when the driver did not pose a threat

to the safety of the officer (or others).” App. at 15. It then

found that this right was clearly established. Id. (citing

Abraham, 183 F.3d at 279; Eberhardinger v. City of York, 782

F. App’x 180 (3d Cir. 2019); Lamont, 637 F.3d at 185). We

agree and will affirm the District Court’s denial of qualified

immunity and summary judgment to Officer Nicoletti.

20

1. Constitutional Violation

Based on the District Court’s recitation of the facts

viewed in the light most favorable to the nonmovant, Officer

Nicoletti conducted an unreasonable seizure of Mr. Dennis

under the Fourth Amendment, and we take no issue with the

District Court’s articulation of the precise constitutional right

he violated. Whether force violates the Fourth Amendment is

determined by the objective reasonableness standard. Rivas,

365 F.3d at 198 (citing Graham v. Connor, 490 U.S. 386, 397

(1989)). The factors we consider in determining

reasonableness include “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 look to 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.” El, 975 F.3d at 336

(quoting Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997))

(cleaned up).

The District Court did not explicitly evaluate each of

these factors, but correctly concluded that, taking the facts in

the light most favorable to Mr. Dennis, Officer Nicoletti’s use

of force was unreasonable and therefore violated Mr. Dennis’s

constitutional rights. As discussed above, we find no blatant

contradiction between the District Court’s treatment of the

facts and the contemporaneous video: a jury could conclude

that Mr. Dennis posed no immediate safety threat and was not

violent or dangerous, he was unarmed, was outnumbered six-

21

to-one, and he suffered the most severe physical injury

possible—death. As such, Mr. Dennis’s estate has at this point

adequately stated a constitutional violation in the form of an

unreasonable use of force under the Fourth Amendment.

Further, we reject Officer Nicoletti’s attempts to

redefine the constitutional right at issue here as

[the] right to be free from unreasonable seizure

where, at the time, the decedent was already

lawfully seized by a team of officers established

by an unmistakable show of authority and

application of reasonable force against him and

the vehicle he was operating, was violently

resisting arrest and attempting to escape the

lawful custody of the officers, had endangered

the life and safety of those around him, and was

in the process of demonstrating his intent to

continue risking the life and safety of others in

the area in attempting to flee.

Nicoletti Br. at 2. As already discussed at length,

Officer Nicoletti’s “preferred articulation of the right at issue

is not available to us within the limits of our jurisdiction”

because it contradicts the District Court’s explicit finding that

several of these factual elements are disputed. El, 975 F.3d at

338.

2. Clearly Established Law

Further, as of August 2018, the right to be free from

unreasonable force in the circumstances at issue here had long

been clearly established under Third Circuit law. Although

there need not be “a case directly on point for a right to be

clearly established, existing precedent must have placed

22

the . . . constitutional question beyond debate.” Kisela v.

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

White v. Pauly, 580 U.S. 73, 79 (2017)).

This particular constitutional question has been

“beyond debate” in this Circuit since 1999. This Court in

Abraham v. Raso evaluated an officer’s interaction with a

suspected shoplifter, where, after a brief pursuit on foot, the

suspect returned to his car and tried to back it out of a parking

spot at the mall, hitting another car behind him. 183 F.3d 279

(3d Cir. 1999). The officer testified that she had to jump out

of the way to dodge the car when it reversed. Id. at 293. She

ran around to the front of the car, and when the suspect lunged

the car forward, she fired a single shot that killed him. Id. at

284. As here, the parties disputed exactly where the officer

was positioned when she shot the suspect—in front or to the

side of the vehicle—and whether he posed a threat to her before

she fired. See id. at 285. This Court found that taking the facts

in the light most favorable to the suspect’s estate, we could not

resolve these questions on summary judgment. Id. at 290. We

noted in denying qualified immunity that “[a] passing risk to a

police officer is not an ongoing license to kill an otherwise

unthreatening suspect.” Id. at 294. 10

10

Officer Nicoletti correctly points out that Abraham also

espouses the proposition that courts must take a totality of the

circumstances approach to evaluating the threat posed by a

victim of excessive force. Nicoletti Br. at 36 (citing Abraham,

183 F.3d at 291). As such, he advocates that the moment just

before he discharged is too narrow a window from which to

evaluate the threat posed by Mr. Dennis, as a matter of law.

However, the District Court clearly did take the entirety of the

stop into account when evaluating the threat posed by Mr.

Dennis—for example, it acknowledged that Mr. Dennis had,

23

While too recent to serve as “clearly established” law

here, our decision in Jefferson v. Lias underscored the enduring

applicability of Abraham where, “based on the record, [the

district court] was [un]willing to determine that the driver’s

conduct while fleeing was so egregious that it posed an

immediate risk to the officers and the public” sufficient to

justify lethal force. 21 F.4th 74, 83 (3d Cir. 2021). In

Jefferson, we left for the jury questions of fact relating to where

the defendant officer stood at the time of discharge and the

extent he was actually in danger of harm by the driver. Id. at

80. This was despite that the use of force there followed a high-

speed car chase (which sets forth an arguably more threatening

situation than the one faced both by Officer Nicoletti and the

officer in Abraham). See id. at 79. Having found the officer’s

conduct would violate clearly established law under Abraham

if proved, we also noted that “[o]ther Courts of Appeals [that]

have considered actions where officers have used deadly force

against non-dangerous suspects attempting to evade arrest

while driving have ruled in parallel.” Id. at 82 (collecting

cases).

prior to that moment, tried to evade arrest and could have

injured an officer, and that Officer Bogan may have reasonably

thought he was reaching for a gun. These facts were simply

insufficient to change the District Court’s overall calculus

when the entire episode was viewed in the light most favorable

to Mr. Dennis. Further, Officer Nicoletti provides no legal

support for the proposition that the broader context of the stop,

suspicion of selling drugs, necessarily poses a threat to officers

or the public sufficient to justify lethal force.

24

Officer Nicoletti’s cited authorities do not compel a

different conclusion. He points to a series of decisions where

courts found that force was justified because the suspect posed

a threat to nearby officers or the public. Again, even were the

District Court’s determination that Mr. Dennis did not pose a

threat to nearby officers or pedestrians reviewable, these cases

are factually distinguishable.

Unlike here, where Mr. Dennis’s car was stopped, the

driver’s car in Brosseau v. Haugen was indisputably still

moving while trying to elude capture when an officer shot him

in the back from behind. See 543 U.S. 194, 197 (2004). 11 In

Plumhoff v. Rickard, officers suspected that the driver of the

car had hit a pedestrian and the shooting took place after a high-

speed car chase reaching speeds of over 100 miles per hour.

572 U.S. at 769 & n.1. Finally, City and Cnty. of San

Francisco, Calif. v. Sheehan, 575 U.S. 600, 605 (2015), and

Kisela, 138 S. Ct. at 1150, involved individuals brandishing

knives, and City of Tahlequah, Okla. v. Bond, 142 S. Ct. 9, 10–

11 (2021), involved an individual threatening to hit officers

with a hammer.

These cases fail to present a more analogous factual

situation than Abraham itself, and we agree with the District

Court that the right at issue here was clearly established thereby

for purposes of affirming its denial of qualified immunity.

11

Although otherwise involving fairly similar facts, the

Supreme Court acknowledged that the incident in Brousseau

occurred before the decision in Abraham, and Abraham

therefore could not have “clearly established” the right

asserted, though the interlude suggests that it otherwise might

have, if published earlier. Id. at 200 n.4.

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IV. CONCLUSION

We will accordingly affirm the District Court’s denial

of summary judgment and qualified immunity and remand for

trial.

26