Markim Summers v. Charles Ramsey, et al

Filing

NOT PRECEDENTIAL OPINION Coram: HARDIMAN, SHWARTZ and ROTH, Circuit Judges. Total Pages: 5. Judge: HARDIMAN Authoring.

Case: 16-4401

Document: 003112789601

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Date Filed: 11/29/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-4401
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MARKIM SUMMERS,
Appellant
v.
COMMISSIONER CHARLES RAMSEY;
OFFICER DANIEL LEVITT, Badge #5482;
CITY OF PHILADELPHIA; PHILADELPHIA POLICE DEPARTMENT;
OFFICER THOMAS O'BRIEN, Badge #7629;
DANIEL WILLIAMS, Badge #6292

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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-13-cv-06644)
District Judge: Honorable Joel H. Slomsky
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Submitted Under Third Circuit L.A.R. 34.1(a)
October 10, 2017
Before: HARDIMAN, SHWARTZ, and ROTH, Circuit Judges.
(Filed: November 29, 2017)
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OPINION*
*

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

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HARDIMAN, Circuit Judge.
Markim Summers shattered the windshield of Philadelphia Police Officer Thomas
O’Brien’s patrol car with two strikes of his bare hand. As Summers wound up for a third
blow, Officer O’Brien shot him twice. Summers sued Officer O’Brien under 42 U.S.C.
§ 1983, alleging that he violated the Fourth Amendment’s prohibition against the use of
excessive force. The District Court granted summary judgment to Officer O’Brien, and
Summers appealed. We will affirm.
I1
A
We analyze whether Officer O’Brien used excessive force under an “objective
reasonableness standard.” Johnson v. City of Philadelphia, 837 F.3d 343, 349 (3d Cir.
2016) (citation omitted). We consider both “the totality of circumstances leading up to
the shooting” as well as the circumstances at the “precise moment of the shooting.” Id. at
350 (citation omitted).
Around 5:00 a.m. on June 29, 2013, Officer O’Brien responded to a request for
backup from Officer Daniel Levitt, who had observed Summers naked in a drug store

1

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. § 1291. Plenary review applies to the District Court’s summary
judgment. Johnson v. City of Philadelphia, 837 F.3d 343, 349 n.30 (3d Cir. 2016).
2

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parking lot screaming and throwing newspaper stands. Based on this observation, Officer
Levitt thought Summers was high on phencyclidine (PCP). By the time Officer O’Brien
arrived, Summers had left the parking lot to lie down in the street, where he obstructed
the passage of a public bus before getting up and walking again.
As Summers meandered through the street, Officer O’Brien and, separately,
Officer Daniel Williams arrived. Officers O’Brien, Williams, and Levitt each
maneuvered their respective patrol cars to contain Summers. Summers attempted to reach
into Officer Levitt’s car, but the officer rolled up his window and put the car in reverse.
Summers then suddenly turned and approached Officer O’Brien’s patrol car and struck
the front windshield with his bare hand, damaging the glass. He struck again, this time
shattering the windshield and showering Officer O’Brien with glass dust. As Summers
readied to strike again, Officer O’Brien, who had seen the effects of PCP on other
occasions, moved his hand from the gear shift and shot Summers twice.2 Seemingly
unaffected by the gunshots, Summers walked away from the patrol car before he
collapsed and was taken to a hospital.

On appeal, Summers, who doesn’t remember the incident, argues that Officer
Williams’s testimony created a disputed material fact as to whether Summers was
“getting off of Officer O’Brien’s car” at that time. Summers Br. 18. We disagree with
Summers’s characterization of the testimony and perceive no dispute as to that fact.
Officer Williams recalled two nearly simultaneous windshield punches “[a]nd
immediately after that [he] heard two gunshots.” App. 283–84. At the time he was shot,
Summers was “still draped over [the] windshield.” App. 290.
2

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B
Based on the facts just described, the District Court held that “no jury could find
that a reasonable officer in O’Brien’s position lacked good reason to believe that Plaintiff
posed a significant threat of death or serious bodily injury.” Summers v. Comm’r Charles
Ramsey, 2016 WL 7188616, at *14 (E.D. Pa. Dec. 12, 2016) (citation and alterations
omitted). The District Court was persuaded that Summers’s previous actions “coupled
with his blows to the patrol car would lead a reasonable police officer to believe [he was]
in fear or of death or serious bodily injury.” Id. We agree.
Like the District Court, we think our recent decision in Johnson v. City of
Philadelphia, 837 F.3d 343 (3d Cir. 2016), is instructive. In that case, an officer shot a
naked man high on PCP who attacked the officer after the officer tased him. Id. at 346–
48. In affirming summary judgment for the officer in a § 1983 excessive force lawsuit,
we explained that the Fourth Amendment does not require “officers encountering
emotionally or mentally disturbed individuals . . . to passively endure a life-threatening
physical assault, regardless of the assailant’s mental state.” Id. at 353. Here, it was not
unreasonable for Officer O’Brien, whose car windshield was shattered by Summers’s
bare hands, to fear for his life. And based on that fear it was objectively reasonable for

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Officer O’Brien to use deadly force to stop the ongoing attack. Therefore, we will affirm
the order of the District Court.3

3

Judge Roth, who dissented in Johnson, agrees that here there was no excessive
use of force.
5