GROOMS v. CITY OF PHILADELPHIA et al

Filing 25

MEMORANDUM. ( SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 9/28/12. ) 9/28/12 ENTERED AND COPIES E-MAILED.(gn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RAFIA GROOMS,
Plaintiff
v.
CITY OF PHILADELPHIA, et al.,
Defendants

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CIVIL ACTION

NO. 10-5178

MEMORANDUM
STENGEL, J.

September 28, 2012

This case arises from the March 16, 2009, fatal shooting of Sontosh Clarke by
Philadelphia Police Officer Britton Brown. Plaintiff Rafia Grooms, Clarke’s mother,
brings this action under 42 U.S.C. § 1983 and Pennsylvania state law.1 Grooms alleges
Brown used excessive force in his encounter with Clarke. Brown seeks summary
judgment on all claims. For the following reasons, I will deny Brown’s motion.
I.

BACKGROUND2
On the evening of March 16, 2009, Philadelphia Police Officers Britton Brown

and Arthur Lee attempted stop a vehicle driven by Sontosh Clarke for a traffic violation.3
(Doc. No. 22,4 Ex. A, ¶ 6.) Clarke pulled into a driveway, exited the vehicle, and fled.
(Id. at ¶ 9.) Brown pursued Clarke on foot while Lee stayed with the patrol car. (Id. at ¶
11.)
1

Grooms also sued the City of Philadelphia; however, she now stipulates to its dismissal. Accordingly, the City of
Philadelphia is dismissed.
2
Under Rule 56 of the Federal Rules of Civil Procedure, I must draw “all justifiable inferences” in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
3
Unknown to Brown and Lee at the time, Clarke was driving a stolen vehicle.
4
Defendant’s Statement of Undisputed Facts.

The parties vigorously dispute what took place next. Brown, the only witness to
the shooting, testified to the following basic facts. After a short pursuit, Brown struck
Clarke from behind with his ASP baton; Clarke turned and confronted Brown. (Brown
Dep. at 39-40.) Clarke “stripped” Brown of his baton, and the two men engaged one
another, first on their feet and then on the ground. (Id. at 43-46.) Brown maneuvered
himself onto Clarke’s back, with Clarke’s face to the ground. (Id. at 59-62.) As Brown
reached for his handcuffs, Clarke managed to flip Brown onto his back, bringing the men
face to face. (Id. at 67-71.) Clarke, now on top, grabbed Brown’s neck and began
punching Brown’s head. (Id. at 74-76.) Brown claims Clarke was “pushing down very
hard” on his neck. (Id.) Brown unholstered his weapon with his right hand after he
began having trouble breathing and started seeing spots. (Id. at 80-82.) Clarke grabbed
Brown’s right wrist. (Id. at 84-85.) Brown, fearing Clarke was attempting to take his
weapon, began thrashing his body and kicking his legs. (Id. at 86-87.) After freeing his
right hand from Clarke’s grip, Brown fired three shots, all of which struck Clarke. (Id.)
Clarke died minutes later; he was unarmed throughout the encounter.
With no witnesses to rely on, Grooms bases her version of the facts on physical
evidence and perceived inconsistencies in Brown’s recollection. Grooms notes that
Officer James Edmiston and Lieutenant David Merrick, both of whom observed Brown
after the shooting, testified that Brown had no visible injuries to his head, face, or neck.
(Edmiston Dep. at 19; Merrick Dep at. 40-41.) Officer Lee testified that he observed
“redness,” but no bruising, around Brown’s neck and jaw. (Lee Dep. at 56-57.) Brown
himself testified that, although the top of his head felt “very tender,” he didn’t notice any
2

wounds to his face or neck. (Brown Dep. at 111-12.) Brown also stated he was having
trouble breathing before Clarke grabbed his throat. (Id. at 80.) Grooms argues this
testimony is inconsistent with Brown’s assertion that Clarke was forcefully choking and
punching him. Grooms also disputes Brown’s recollection of the shooting. Clarke was
shot twice in the chest and once in the back. (Gulino Dep. at 10-18.) Brown testified that
he couldn’t recall the position of Clarke’s body during the shooting:
Q:

When you fired your weapon at Mr. Clarke he was trying to get away from
you, wasn’t he?

A:

I don’t know.

Q:

He was on his feet?

A:

I don’t know.

Q:

At some point when you were firing, his back was turned to you?

A:

I don’t know.

(Brown Dep. at 113-14; see also id. at 92, 130.) Brown stated that all he saw was “a
body, like a white shirt,” since he “just fired and turned away.” (Id. at 91.) Grooms also
points to the testimony of Dr. Gulino, the chief medical examiner for the City of
Philadelphia. Dr. Gulino testified that the lack of soot or gunpowder stippling on
Clarke’s body suggests that Brown fired his weapon at least two feet away from Clarke.
(Gulino Dep. at 28.) Grooms argues that a reasonable jury could conclude from these
facts that Clarke never posed a deadly threat to Brown and that Brown shot Clarke as he
attempted to flee.

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II.

STANDARD OF REVIEW
Summary judgment is appropriate 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). A factual dispute is “material” only if it might affect the
outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an
issue to be “genuine,” a reasonable fact-finder must be able to return a verdict in favor of
the non-moving party. Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986).
“[S]ince the victim of deadly force is unable to testify, courts should be cautious
on summary judgment 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.’” Abraham v. Raso, 183 F.3d 279, 294 (3d Cir. 1999) (quoting Scott v. Henrich,
39 F.3d 912, 915 (9th Cir. 1994)). “‘[T]he court may not simply accept what may be a
self-serving account by the officer. It must also look at the 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 acted unreasonably.’” Id.
“Cases that turn crucially on the credibility of witnesses’ testimony in particular should
not be resolved on summary judgment.” Abraham, 183 F.3d at 287.
“This is not to say that the summary judgment standard should be applied with
extra rigor in deadly-force cases.” Lamont v. New Jersey, 637 F.3d 177, 182 (3d Cir.
2011). “Just as in a run-of-the-mill civil action, the party opposing summary judgment in
a deadly-force case must point to evidence—whether direct or circumstantial—that
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creates a genuine issue of material fact, “‘and may not rely simply on the assertion that a
reasonable jury could discredit the opponent[s’] account.’” Id. (quoting Estate of Smith
v. Marasco, 318 F.3d 497, 514 (3d Cir. 2003)).
III.

DISCUSSION
A.

Grooms’ § 1983 Claim5

Brown seeks summary judgment on Grooms’ claim of excessive force, contending
he is qualifiedly immune from suit. For the reasons discussed below, I will deny
Brown’s motion.
Qualified immunity shields government officials “from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). To determine whether an officer is qualifiedly immune from suit, a
court must ask (1) whether the officer violated a constitutional right, and if so, (2)
whether the right was clearly established. See Saucier v. Katz, 533 U.S. 194, 201–02
(2001). I first address whether Brown’s use of deadly force violated the Fourth
Amendment.6

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42 U.S.C. § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .” In short, § 1983 “provides a remedy for deprivations of rights established
elsewhere in the Constitution or federal laws.” Kopec v. Tate, 361 F.3d 772, 775-76 (3d Cir. 2004).
6
Although I am no longer required to consider the constitutional issue before the “clearly established” issue, the
Supreme Court has recognized that it is “often beneficial” to do so. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.
Ct. 808, 818 (2009).

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1.

Excessive Force

Claims of excessive force are analyzed under the Fourth Amendment. See
Graham v. Connor, 490 U.S. 386, 393–94 (1989). The Fourth Amendment protects
“[t]he right of the people to be secure in their persons . . . against unreasonable . . .
seizures.” To prevail on a claim of excessive force, a plaintiff must show that a seizure
occurred and that it was unreasonable. See Abraham, 183 F.3d at 288. Clarke was seized
when Brown shot him. See Tennessee v. Garner, 471 U.S. 1 (1985). The only question
is whether the seizure was reasonable.
An officer’s use of deadly force is reasonable only where “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.” Garner, 471
U.S. at 3. “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene” and in light of the “totality of the
circumstances.” Graham, 490 U.S. at 396. Making this determination “requires careful
attention to the facts and circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade arrest
by flight.”7 Graham, 490 U.S. at 396. The basic question is as follows: “Giving due
regard to the pressures faced by the police, was it objectively reasonable for the officer to
believe, in light of the totality of the circumstances, that deadly force was necessary to
7

The Third Circuit adds to this list “the duration of the action, whether the action takes place in the context of
effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police
officers must contend at one time.” Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997).

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prevent the suspect's escape, and that the suspect posed a significant threat of death or
serious physical injury to the officer or others?” Abraham , 183 F.3d at 289.
Brown is not entitled to summary judgment because genuine issues of material
fact exist regarding whether his use of deadly force was reasonable under the
circumstances. Although it is uncontested that Clarke was resisting arrest at the time of
the shooting, “this factor alone cannot justify the use of deadly force.” Plaza-Bonilla v.
Cortazzo, CIV.A.07-2045, 2009 WL 605909 (E.D. Pa. Mar. 9, 2009). Grooms has
pointed to evidence that, when viewed in her favor, suggests Brown’s use of deadly force
may have been unreasonable. Clarke was unarmed. There is testimony suggesting that
Clarke’s assault on Brown’s head and neck was not, perhaps, as serious as Brown alleges.
Brown cannot recall where Clarke’s body was in relation to his at the time of the
shooting, and Clarke was shot once in the back possibly at a range of two feet or more.
Finally, Brown is the only witness to the shooting. As a result, “a jury will have to make
credibility judgments, and credibility determinations should not be made on summary
judgment.” Abraham, 183 F.3d at 294.
2.

Qualified Immunity

Having concluded that a jury could find Brown violated Clarke’s Fourth
Amendment right to be free from excessive force, I now proceed to the second prong of
Saucier’s qualified immunity analysis: whether that right was clearly established.
The inquiry for qualified immunity is distinct from that for excessive force.
Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir. 2004). An officer is
entitled to qualified immunity if the right at issue was clearly established at the time the
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violation occurred; that is, if “it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. “If an official
could have reasonably believed that his or her actions were lawful, the official receives
immunity even if in fact the actions were not lawful.”8 Forbes v. Twp. of Lower Merion,
313 F.3d 144, 148 (3d Cir. 2002).
Unlike the reasonableness-of-force inquiry, which is usually a question for the
jury, an officer’s eligibility for qualified immunity is a question of law exclusively for the
court. Carswell, 381 F.3d at 242; see also Curley v. Klem, 499 F.3d 199, 211 n.12 (3d
Cir. 2007). “The jury, however, determines disputed historical facts material to the
qualified immunity question.” Carswell, 381 F.3d at 242. “A decision as to qualified
immunity is ‘premature when there are unresolved disputes of historical facts relevant to
the immunity analysis.’” Phillips v. County of Allegheny, 515 F.3d 224, 242 (3d Cir.
2008) (quoting Curley v. Klem, 298 F.3d 271, 277-78 (3d Cir. 2002)).
As with the excessive force inquiry, disputed issues of material fact preclude
summary judgment on Brown’s assertion of qualified immunity. Determining what
would have been clear to a reasonable officer in Brown’s situation requires a clear view
of the situation, something which is not presently before me. As indicated, disputed
factual issues relevant to this inquiry include the seriousness of the threat Clarke posed to
Brown and Clarke’s possible disengagement or retreat at the time of the shooting. A jury

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Put another way, the constitutional question asks “whether the officer made a reasonable mistake of fact,” while
the qualified immunity question asks “whether the officer was reasonably mistaken about the state of the law.”
Curley, 499 F.3d at 214.

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must resolve these factual issues. I will defer consideration of Brown’s qualified
immunity defense until one does so.
B.

Grooms’ State Law Claims

Grooms also brings wrongful death and survival claims against Brown pursuant to
Pennsylvania state law. See 42 Pa. Cons. Stat. Ann. §§ 8301(a), 8302. Brown argues,
unopposed, that he is immune to these claims under the Pennsylvania Political
Subdivision Tort Claims Act (PSTCA). See Def.’s Mot. for Summ. J. at 18-19.
The PSTCA provides legal immunity for government employees unless their
conduct constituted a “crime, actual fraud, actual malice or willful misconduct.” See 42
Pa. Con. Stat. Ann. §§ 8545, 8550. Brown contends that his conduct does not fall within
one of these categories and that he is therefore immune.
As with Brown’s claim of excessive force under § 1983, disputes of material fact
preclude summary judgment on Grooms’ state law claims. Similar to a Fourth
Amendment claim, Brown’s immunity under the PSTCA will hinge on the
reasonableness of the force used, which is a determination I cannot make at this time.
See, e.g., Pelzer v. City of Philadelphia, 656 F. Supp. 2d 517, 539 (E.D. Pa. 2009).
IV.

CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is denied.
An appropriate Order follows.

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