THOMPSON et al v. HOWARD et al
Filing
136
MEMORANDUM OPINION on the 123 MOTION for Summary Judgment filed by NORMAN HOWARD. Signed by Magistrate Judge Lisa Pupo Lenihan on 08/26/2015. (jmb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JAMES S. THOMPSON
Plaintiff,
v.
NORMAN HOWARD, a Redstone
Township Policeman
Defendant.
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Civil Action No. 9-1416
Magistrate Judge Lenihan
ECF No. 123
MEMORANDUM OPINION
Lenihan, M.J.
Presently before the Court is the Motion for Summary Judgment filed by Defendant
Norman Howard. (ECF No. 123.) For the reasons discussed below, the Motion will be granted.
I. FACTS
The following facts are undisputed unless otherwise indicated and are taken from the
parties’ Statements of Undisputed Material Facts and Responses thereto at ECF Nos. 125, 129,
and 135, as well as other relevant portions of the summary judgment record.
On March 9, 2008, Plaintiff James S. Thompson (“Plaintiff”) was a passenger in a 1999
Chevrolet Malibu being driven by his then-girlfriend, Rae Lynn Sigwalt (“Sigwalt”). (ECF Nos.
125, 129 at ¶ 1.) As Sigwalt and Plaintiff were travelling on Route 166 in the area of Republic,
PA, Plaintiff observed a Redstone Township police car sitting in the parking lot of Buzzy’s gas
station on Route 166. (ECF Nos. 125, 129 at ¶ 2.) After Sigwalt drove past Buzzy’s, the
Redstone Township police car began following the Malibu. (ECF Nos. 125, 129 at ¶ 3.) At the
time, Defendant Norman Howard (“Defendant”) was a police officer employed by Redstone
Township, and was on duty for the 6:00 p.m. to 2:00 a.m. shift. He was wearing his police
uniform and driving a marked police vehicle. (ECF Nos. 125, 129 at ¶ 4.) Defendant was also
employed by the Fayette County Court as a constable. (ECF Nos. 125, 129 at ¶ 5.)
Defendant testified that between 7:00 and 7:30 p.m. on March 9, 2008, Defendant was
patrolling on southbound Route 166 in Republic, PA when he observed a Malibu, driven by a
female, traveling northbound on Route 166. (ECF Nos. 125, 129 at ¶ 6.) Defendant testified that
he recognized the female driver as Sigwalt, whom he had previously transported between the
prison and the courthouse in his work as a constable. (ECF Nos. 125, 129 at ¶ 7.) Defendant
further testified that through his work as a constable, in which he had recently assisted in a
warrant sweep, he was aware that a bench warrant existed for Sigwalt’s arrest. (ECF Nos. 125,
129 at ¶ 8.) Defendant began following the Malibu, and when Sigwalt made a turn without using
a turn signal, he initiated a traffic stop on Rollie Street in Republic. (ECF Nos. 125, 129 at ¶ 9.)
Defendant parked his police car behind the Malibu. (ECF Nos. 125, 129 at ¶ 10.) He
contacted dispatch with the license plate number of the vehicle, and dispatch responded that the
vehicle was registered to a Michelle Rausch and a James Erjavec. (ECF Nos. 125, 129 at ¶ 11.)
Defendant approached the driver’s side of the Malibu and asked Sigwalt for her driver’s license,
registration, and insurance. (ECF Nos. 125, 129 at ¶ 12.) Sigwalt handed Defendant her driver’s
license, and Defendant returned to the police car. (ECF Nos. 125, 129 at ¶ 13.) Defendant
testified that he contacted county dispatch and confirmed that the warrant for Sigwalt was still in
effect. (ECF Nos. 125, 129 at ¶ 14.) Defendant then returned to the Malibu and asked Sigwalt to
step out of the car. (ECF Nos. 125, 129 at ¶ 15.) Plaintiff inquired as to the reason for the traffic
stop, and according to Plaintiff, Defendant told him to “shut up.” (ECF Nos. 125, 129 at ¶ 16.)
2
Defendant handcuffed Sigwalt and put her in the police car. (ECF Nos. 125, 129 at ¶ 17.)
Defendant states that at this point, he observed Plaintiff repeatedly turning his head and moving
about, and that Plaintiff appeared to be making reaching movements. (ECF Nos. 125, 129 at ¶
18.)1 Defendant then approached the passenger side of the vehicle. Defendant noticed that
Plaintiff’s head disappeared from view for a second or two as Defendant approached, and
Defendant could not see Plaintiff’s hands as he approached. (ECF Nos. 125, 129 at ¶¶ 19-20.)2
Defendant was not familiar with Plaintiff prior to the events in issue.3 (ECF Nos. 125,
129 at ¶ 21.) When Defendant reached the passenger side of the vehicle, he could see that
Plaintiff’s hands were down below the seat. (ECF Nos. 125, 129 at ¶ 24.)4 Defendant asked
Plaintiff for his identification, and directed him to step out of the car and walk to the rear of the
Malibu. Plaintiff complied. (ECF Nos. 125, 129 at ¶ 25.) Defendant told Plaintiff to put his
hands on the trunk. Again, Plaintiff complied, and Defendant performed a patdown of Plaintiff’s
person. (ECF Nos. 125, 129 at ¶ 26.) Defendant uncovered no weapons. (ECF Nos. 125, 129 at
¶ 27.) Plaintiff provided Defendant with his name, and Defendant obtained Plaintiff’s social
security card and an “ACCESS” card from a pocket in Plaintiff’s jacket during the patdown.
(ECF Nos. 125, 129 at ¶ 28.)
As Plaintiff was standing outside the Malibu, Defendant ran Plaintiff’s name through
county dispatch on his portable radio while standing near the rear driver’s side of the Malibu.
(ECF Nos. 125, 129 at ¶ 29.) After Defendant provided Plaintiff’s identification to dispatch, a
1
Although Plaintiff disputes these assertions in his Response to Defendant’s Concise Statement of Material Facts,
Plaintiff’s citations to the record do not provide support for Plaintiff’s contention that these facts are disputed.
2
Although Plaintiff disputes these assertions in his Response to Defendant’s Concise Statement of Material Facts,
Plaintiff’s citations to the record do not provide support for Plaintiff’s contention that these facts are disputed.
3
Plaintiff attempts to dispute this fact in his Response to Defendant’s Concise Statement of Material Facts, but
Plaintiff’s citation to the record only reveals that Defendant thought he may have seen Plaintiff once, but Plaintiff
stated to Defendant, when questioned by him, that he was not the man Defendant saw.
4
Although Plaintiff disputes these assertions in his Response to Defendant’s Concise Statement of Material Facts,
Plaintiff’s citations to the record do not provide support for Plaintiff’s contention that these facts are disputed.
3
transmission came over his radio from a voice that Plaintiff recognized as Roy Mehalik, the
Police Chief of Luzerne Township (“Chief Mehalik”). Plaintiff asserts that when both of them
were children, he suffered abuse at the hands of Chief Mehalik. (ECF Nos. 125, 129 at ¶ 30 and
Plaintiff’s Dep., ECF No. 126-1 at 31-32.)
Redstone and Luzerne Township share a police radio channel. During this time, Chief
Mehalik was employed by the Luzerne Township Police Department and was working the 2:00
p.m. to 10:00 p.m. shift. (ECF Nos. 125, 129 at ¶¶ 31-32.) Chief Mehalik heard Defendant’s
radio transmission to 911 regarding the subject traffic stop, and his subsequent transmission
asking dispatch to “run James Thompson.” (ECF Nos. 125, 129 at ¶ 33.) Upon hearing
Defendant transmit Plaintiff’s name, Chief Mehalik stated the following: “I am on my way down
there[,] you might want to use some caution with that individual[.]” Defendant responded to
Chief Mehalik as follows: “10-4[.] That’s what I figured[.]” (Transcribed March 9, 2008 audio
transmissions from the Pennsylvania State Police, ECF No. 130-5 at 2.) The audio transmission
also confirmed that there were no outstanding warrants for Plaintiff. (Id. at 3.)
Defendant contends that by this time he was becoming concerned for his safety, while
Plaintiff contends that he had no reason to be concerned because Defendant knew that Plaintiff
had no outstanding warrants.5 (ECF Nos. 125, 129 at ¶¶ 19, 20, 21, 23, and ECF No. 130-5 at 2.)
Defendant asserts he did not release Plaintiff immediately after confirming the lack of warrants,
because he was still investigating other aspects of the stop which resulted in Sigwalt’s arrest,
including a search of the vehicle. (ECF No. 125 at ¶ 44.) Plaintiff disputes that this was
Defendant’s reasoning because Defendant never indicated that he wanted to search the vehicle or
that this was a precondition to releasing Plaintiff. (ECF No. 129 at ¶ 44.) Instead, Defendant
5
Plaintiff states that Defendant had told him that if he did not have any outstanding warrants he would be free to go.
(ECF No. 129 at ¶ 38.)
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told Plaintiff that he was going to place him in handcuffs. The parties agree that Plaintiff refused
to go into cuffs, and that Plaintiff repeatedly insisted that there was no reason that he should be
placed into cuffs. (ECF Nos. 125, 129 at ¶ 45; Plaintiff’s Dep., ECF No. 126-1 at 56-58.)
Plaintiff states that Defendant used racial epithets and threatened to taser and kill Plaintiff if he
did not comply. (ECF Nos. 125, 129 at ¶ 39.) Plaintiff further states that, at this time, he
became terrified in response to Defendant’s conduct, and by the fact that his childhood menace,
Chief Mehalik, was on his way to the scene. (ECF No. 129 at ¶¶ 38-30, Plaintiff’s Dep., ECF
No. 126-1 at 64.) Defendant states that, while still at the back of the Malibu, Plaintiff appeared
to be “going for that passenger’s side of the car for some reason” and he became concerned that
there may be a weapon inside the car. Plaintiff disputes that he was going for the passenger’s
side of the car, but Plaintiff’s citation to the record does not support his assertion. (ECF No. 129
at ¶ 40 (Plaintiff’s Dep. at 51:22-25 (“Q: At any point before Officer Howard talked about
cuffing you, did you ever ask to go back into car to get another cigarette? A. No.”).) In fact,
Plaintiff admits that when Defendant began insisting that he go into handcuffs, Plaintiff started
backing up toward the passenger side of the car. (Plaintiff’s Dep., ECF No. 126-1 at 59.)
After Plaintiff’s repeated refusals to go into handcuffs, Defendant deployed his taser in
the area of Plaintiff’s torso. (ECF Nos. 125, 129 at ¶ 54.) Defendant twice attempted to taser
Plaintiff, but neither attempt had any effect on Plaintiff. (ECF No. 125 at ¶ 56).6 During one of
the attempts, Defendant shocked himself with the taser. (ECF Nos. 125, 129 at ¶ 57.)
Thereafter, according to Plaintiff, Defendant yelled racial epithets and threats to Plaintiff that he
would kill him. Plaintiff then hurried to the front of the Malibu. (ECF Nos. 125, 129 at ¶ 59.)
6
Plaintiff relies upon his deposition testimony in an attempt to create a disputed issue of material fact as to whether
the taser had any effect on him. In his Complaint and Amended Complaint, Plaintiff states unequivocally that the
taser failed to work both times. As will be discussed, infra at section III, Plaintiff is estopped from contradicting his
own prior sworn statements, absent a plausible explanation for the contradiction, which appears at no point in the
record.
5
While Defendant thought Plaintiff was attempting to flee, Plaintiff asserts that he was terrified of
Defendant and was trying to get away from him. (ECF Nos. 125, 129 at ¶ 60.) Using racial
epithets (according to Plaintiff), Defendant commanded Plaintiff to stop and get on the ground.
(ECF Nos. 125, 129 at ¶ 61.) The parties agree that Defendant chased Plaintiff, striking him with
his baton, as Plaintiff proceeded around the car. (ECF Nos. 125, 129 at ¶ 63.) According to
Plaintiff, he was limping as Defendant struck him.7 (ECF No. 129 at ¶ 65.)
On the second or third time around the Malibu, Plaintiff jumped into the driver’s seat,
locked the door and started the engine.8 (ECF Nos. 125, 129 at ¶ 65; Plaintiff’s Dep., ECF No.
126-1 at 65.) Plaintiff was leaning towards the passenger side of the vehicle after Plaintiff
jumped into the driver’s seat.9 (ECF Nos. 125, 129 at ¶ 69.) At this time, Defendant states he
could not see Plaintiff’s hands. (ECF Nos. 125, 129 at ¶ 71.)10 Defendant used his baton to
break the glass of the driver’s window and to strike Plaintiff. (ECF Nos. 125, 129 at ¶ 72.) With
the glass broken, Defendant used the baton to strike Plaintiff in the driver’s seat of the Malibu,
while commanding him to stop. (ECF Nos. 125, 129 at ¶ 73.) Chief Mehalik, arriving at the
scene in his police vehicle with lights and siren activated, was parked “a couple of feet” from the
Malibu with his police car facing the Malibu in order to block Plaintiff’s exit. (ECF Nos. 125,
129 at ¶¶ 74 & 75.) Seconds after Plaintiff put the Malibu in gear and pushed on the gas, he
collided with Chief Mehalik’s vehicle. (Plaintiff’s Dep. at 73; ECF Nos. 125, 129 at ¶¶ 74, 79.)
7
Plaintiff states that he suffers from gout and arthritis, but testified that he was “running” from Defendant.
(Plaintiff’s Dep., ECF No. 126-1 at 65.)
8
The keys were still in the ignition of the Malibu. (ECF Nos. 125, 129 at ¶ 64.)
9
Plaintiff states he did so because Defendant was at the driver’s side door, reaching in, still trying to hit Plaintiff
with the baton. Plaintiff’s citation to the record at page 68, lines 9-14, does not support his assertion. Plaintiff’s
citation pertains to the time period after Defendant broke the driver’s side window, which had not yet occurred at the
time Defendant contends he first saw Plaintiff leaning towards the passenger side of the vehicle.
10
Plaintiff attempts to create a disputed issue of fact by citing to Defendant’s deposition testimony at Page 89, lines
5-8, where Defendant testifies that Plaintiff’s hands were on the steering wheel. Defendant’s testimony here
pertains to the time period after Defendant broke the driver’s side window, which had not yet occurred at the time
Defendant first approached the driver’s side window.
6
Plaintiff testified that he was not looking where he was going because he was down below the
dash. (Plaintiff’s Dep., ECF No. 126-1 at 72, 74.) Defendant’s arms were still inside the
driver’s side window when Plaintiff pulled away. (ECF Nos. 125, 129 at ¶ 78.) Plaintiff
contends that he feared for his life because his childhood menace, Mehalik was coming onto the
scene, and he was also trying to avoid the “brutal attack” by Defendant. (ECF No. 129 at ¶ 78,
Plaintiff’s Dep., ECF No. 126-1 at 64.)
Plaintiff hit into the left front area of Chief Mehalik’s police car as Chief Mehalik was
opening the driver’s side door and beginning to exit the vehicle. (ECF Nos. 125, 129 at ¶ 80.)
Defendant testified that he was unable to see Chief Mehalik after the impact and could not tell
whether the Malibu had struck Chief Mehalik’s person. Plaintiff disputes this assertion
indicating that because Defendant testified he was in the middle of the road, he would have been
able to see Chief Mehalik at all times. (ECF Nos. 125, 129 at ¶ 81.) Plaintiff then drove the
Malibu through a resident’s yard and driveway to get around Chief Mehalik’s car. (ECF Nos.
125, 129 at ¶ 82.) Plaintiff testified that after the collision, he was “still traveling with [his] foot
on the gas, all the way to the floor . . . .” (Plaintiff’s Dep., ECF No. 126-1 at 73.) At this time,
Defendant did not have his handgun out, only his baton. (Plaintiff’s Dep., ECF No. 126-1 at 74.)
Plaintiff was leaning to the right towards the passenger side of the vehicle, below the dash board.
(Plaintiff’s Dep., ECF No. 126-1 at 72, 76.) Plaintiff drove through other yards as he fled.
(Plaintiff’s Dep., ECF No. 126-1 at 75.)
Defendant moved away from the collision and ended up in the road. (Defendant’s Dep.,
ECF No. 129-9 at 94.) The parties dispute whether Plaintiff turned the Malibu toward the
Defendant. (ECF Nos. 125, 129 at ¶ 86.) Defendant then pulled out his duty weapon and fired
five shots at Plaintiff. (ECF Nos. 125, 129 at ¶ 87.) Chief Mehalik fired one shot at the vehicle
7
because he thought that the Malibu was going to strike Defendant. (Mehalik Dep., ECF No. 12612 at 2.) No bullets hit Plaintiff except for a bullet that grazed his head. (ECF No. 129 at ¶ 96.)
Plaintiff admits that he “never claimed [he] was injured in any physical manner.” (ECF No. 1267 at 1.) Chief Mehalik searched for Plaintiff after the incident but did not locate him. (ECF No.
129 at ¶ 95.) Plaintiff does not dispute the fact that he was not driving straight and that he drove
through a resident’s yard and nearly struck a parked vehicle as he fled at high speed, but
contends that his vision was compromised because he was trying to avoid being hit by the
officers’ gunfire. (ECF Nos. 125, 129 at ¶¶ 92-93.) Plaintiff continued heading down Route 166
towards Brownsville. (ECF No. 129 at ¶ 88.)
Defendant and Chief Mehalik contacted the State Police to handle the incident.
Thereafter, Plaintiff turned himself in to the Magisterial District Judge. As a result of the
incident, Plaintiff was charged with two counts of aggravated assault, and one count each of
simple assault, resisting arrest, and criminal mischief. The October 2, 2009 Order of Judge Steve
P. Leskinen of the Court of Common Pleas of Fayette County, Pennsylvania, Criminal Division,
ordered that the resisting arrest charge be dismissed because Defendant’s attempt to handcuff
Plaintiff was not a lawful arrest. The charges of aggravated assault, and criminal mischief,
however, were not dismissed by Judge Leskinen because Plaintiff placed Officer Mehalik in
danger of serious bodily injury or death, and because the vehicle Plaintiff was driving caused
approximately $1,000.00 in damage to the police vehicle. (ECF No. 130-6 at 4.) Judge
Leskinen indicated that Plaintiff was not privileged to remove Sigwalt’s vehicle from the scene
because Sigwalt had been stopped pursuant to a lawful warrant, and the arresting officer had not
yet had the opportunity to perform a lawful search of the passenger compartment of the vehicle.
(ECF No. 130-6 at 3.) Judge Leskinen also stated that Plaintiff “intentionally drove the car
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directly into the side of [Mehalik’s] patrol vehicle, another action he was not privileged to do . . .
.” (ECF No. 130-6 at 3.) After a jury trial, Plaintiff was found guilty of 1 count of aggravated
assault, 1 count of simple assault, and 1 count of criminal mischief. (State Court Docket No. CP26-CR-0000527-2008, ECF No. 126-6.)
Plaintiff, initially proceeding pro se, filed this § 1983 action against a variety of
defendants. The sole claim remaining is Plaintiff’s Fourth Amendment excessive force claim
against Defendant Officer Howard. On March 3, 2014, this Court entered an Order directing the
Clerk of Court to request pro bono counsel to represent Plaintiff. (ECF No. 113.) Counsel of
record accepted the request and entered her appearance on behalf of Plaintiff on April 10, 2014.
Thereafter, this Court granted several extensions for the completion of discovery. Presently
before the Court is Defendant Howard’s Motion for Summary Judgment on Plaintiff’s Fourth
Amendment excessive force claim.
II. LEGAL STANDARD
Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving
party, “the pleadings, depositions, answers to interrogatories and admissions on file, together
with the affidavits, if any, show that there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Summary judgment may be
granted against a party who fails to adduce facts sufficient to establish the existence of any
element essential to that party’s case, and for which that party will bear the burden of proof at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial
burden of identifying evidence which demonstrates the absence of a genuine issue of material
fact; that is, the movant must show that the evidence of record is insufficient to carry the non-
9
movant’s burden of proof. Id. Once that burden has been met, the nonmoving party must set
forth “specific facts showing that there is a genuine issue for trial” or the factual record will be
taken as presented by the moving party and judgment will be entered as a matter of law.
Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R.
Civ. P. 56(e)) (emphasis added by Matsushita Court). An issue is genuine only “if the evidence
is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v.
Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986). In Anderson, the United States Supreme Court
noted the following:
[A]t the summary judgment stage the judge’s function is not
himself to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial. . . .
[T]here is no issue for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that
party. If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.
Id. at 249-50 (internal citations omitted).
Here, Defendant contends that he is entitled to judgment as a matter of law because
record evidence demonstrates that he did not violate Plaintiff’s Fourth Amendment protection
from excessive force, and even if he did, he is entitled to qualified immunity. Plaintiff responds
that genuine issues of material fact preclude summary judgment because a reasonable jury could
conclude that Defendant used excessive force and thereby violated his Fourth Amendment rights.
III. ANALYSIS
Section 1983
Section 1983 of the Civil Rights Act provides as follows:
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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 any 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 . . . .
42 U.S.C. § 1983. To state a claim for relief under this provision, the Plaintiff must demonstrate
that the conduct in the complaint was committed by a person or entity acting under color of state
law, and that such conduct deprived the Plaintiff of rights, privileges or immunities secured by
the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania,
36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a
remedy for violations of those rights created by the United States Constitution or federal law.
Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
Excessive Force and Qualified Immunity
State officials, including police officers, performing discretionary acts enjoy “qualified
immunity” from money damages in § 1983 causes of action when their conduct does not violate
“clearly established” statutory or constitutional rights of which a “reasonable person” would
have known at the time the incident occurred. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity “avoid[s] excessive disruption of government and permit[s] the resolution of
many insubstantial claims on summary judgment.” Id.
In Saucier v. Katz, 533 U.S. 194 (2001), the United States Supreme Court discussed the
two-step qualified immunity inquiry. The Court directed that, in deciding whether a defendant is
protected by qualified immunity, a court first must determine whether, “[t]aken in the light most
favorable to the party asserting the injury, . . . the facts alleged show the officer=s conduct
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violated a constitutional right.” Id. at 201. If the facts do not establish the violation of a
constitutional right, no further inquiry concerning qualified immunity is necessary. Id. If the
facts, including the disputed facts taken in the light most favorable to the nonmoving party do
show a violation of his rights, then the court must proceed to determine whether the right was
“clearly established,” that is, whether the contours of the right were already delineated with
sufficient clarity to make a reasonable officer in the defendant=s circumstances aware that what
he was doing violated the right. Id. at 201-02. In Pearson v. Callahan, 555 U.S. 223 (2009), the
United States Supreme Court concluded that while the two-step sequence identified in Saucier
“is often appropriate, it should no longer be regarded as mandatory.” Id. at 236. As recently
indicated in a precedential case by the United States Court of Appeals for the Third Circuit,
“[t]his two-step process has more particularized requirements in an excessive force case . . . .”
Santini v. Fuentes, No. 14-2938, 2015 WL 4620235, at *5 (3d Cir. Aug. 4, 2015). In Santini, the
court of appeals succinctly set forth these more particularized requirements as follows:
In an excessive force case, we determine whether a
constitutional violation has occurred using the Fourth
Amendment’s objective reasonableness test. To determine
objective reasonableness, we must balance the “nature and quality
of the intrusions on the individual’s Fourth Amendment interests
against the countervailing governmental interests at stake.”
While this inquiry is highly individualized and fact
specific, the Supreme Court has provided three factors to guide us
through it: (1) the severity of the crime at issue, (2) whether the
suspect poses an imminent threat to the safety of the police or
others in the vicinity, and (3) whether the suspect attempts to resist
arrest or flee the scene. Graham [v. Connor], 490 U.S. [386,] [ ]
396; see also Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir 1997)
(providing additional factors including “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 officer must contend at one time”). We evaluate objective
reasonableness from the perspective of the officer at the time of the
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incident and not with the benefit of hindsight. In sum, we employ
a “totality of circumstances” approach for evaluating objective
reasonableness.
During the second step of the Saucier inquiry, we inquire
whether—even though an officer violated an individual’s
constitutional right—immunity should still protect that officer
from liability. To answer that question, we must determine
whether the right violated by the officer was clearly established at
the time of the violation. To make that determination, we engage
in another reasonableness inquiry: “whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he
confronted.” [T]his inquiry is objective and fact specific. [T]he
purpose of the step two inquiry is to acknowledge the reality that
“reasonable mistakes can be made as to the legal constraints on
particular police conduct.”
Santini, 2015 WL 4620235, at *5 (citations omitted).
Here, the Court exercises extreme caution in construing all facts and inferences in favor
of the Plaintiff, the nonmoving party.11 See Santini, 2015 WL 4620235, at *7.
In employing the Graham totality of the circumstances test, the Court examines the entire
sequence of events as they unfolded, and without benefit of hindsight. See Santini, 2015 WL
4620235, at*5 (citing Maryland v. Garrison, 480 U.S. 79, 85 (1987)). First, upon lawfully
securing Sigwalt in the back of his police cruiser after confirming that her outstanding warrant
was still in effect, Defendant observed Plaintiff repeatedly turning his head, moving about, and
making reaching movements. A reasonable police officer under these circumstances would have
been concerned that Plaintiff may have been reaching for a weapon. Defendant approached the
passenger side of the Malibu, and at this time in March 2008, a reasonable police officer would
have believed that he had the right to search the passenger compartment of the vehicle pursuant
to the lawful arrest of Sigwalt, even after she was secured in the back of the police cruiser.
11
In Plaintiff’s Response to Defendant’s Concise Statement of Material Facts, Plaintiff cites to the record in an
attempt to raise disputed issues of material fact. Repeatedly, the Court’s examination of these citations reveals that
the record does not support the facts for which Plaintiff attempts to raise a dispute. Disputed issues of fact must be
supported by record evidence, and not merely assertions of counsel.
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Thornton v. United States, 541 U.S. 615, 623-24 (2004). See also Davis v. United States, 131 S.
Ct. 2419, 2424-25 (2011) (discussing the bright-line rule authorizing automobile searches
incident to arrest of recent occupants until the 2009 Supreme Court case of Arizona v. Gant, 556
U.S. 332 (2009)). Upon approaching the passenger side of the Malibu, Defendant further
observed that Plaintiff’s head disappeared from view for a second or two as he approached, and
at that time could not see Plaintiff’s hands. Again, in securing the vehicle, a reasonable police
officer would be concerned that the passenger had a weapon. When Defendant reached the
passenger side of the vehicle, he could see that Plaintiff’s hands were down below the seat, again
alerting a reasonable officer that a weapon may be under the seat.
Upon taking Plaintiff to the back of the Malibu, running his name through county
dispatch, and learning from Chief Mehalik that he should “use some caution with” Plaintiff, and
that Chief Mehalik was “on [his] way down there[,]” Defendant made the decision to hand cuff
Plaintiff for his own safety. Plaintiff admits that upon hearing Chief Mehalik’s voice over the
radio and his intention to arrive at the scene, he became terrified. Plaintiff repeatedly refused to
go into handcuffs and admitted that he started backing toward the passenger side of the car. A
reasonable officer in Defendant’s position could have believed that Plaintiff was again going for
the passenger door to secure a weapon located inside the Malibu, and this concern would have
been heightened by Chief Mehalik’s warning to proceed with caution when dealing with
Plaintiff, an individual otherwise unknown to Defendant.
After attempting to protect himself by placing Plaintiff into hand cuffs, and after
Plaintiff’s repeated refusals to comply, Defendant tasered Plaintiff with no perceptible effect.
Plaintiff attempts to create a disputed issue of material fact as to whether the taser shocked him.
In his Complaint and Amended Complaint, Plaintiff states unequivocally that the taser failed to
14
work both times. (Complaint, ECF No. 3 at 4 (Defendant “tased your Plaintiff twice with a taser
gun which failed to work.”); Amended Complaint, ECF No. 65 at 5 (Defendant “tried to taser me
but was unable to after two trys [sic].”). “A fact asserted in a pleading, which is both
unequivocal and which would normally require evidentiary proof, constitutes a judicial
admission.” Judon v. Travelerers Property Cas. Co., 773 F.3d 495, 502 n.6 (3d Cir. 2014)
(citing Parilla v. IAP Worldwide Servs., VI, Inc., 368 F.3d 269, 275 (3d Cir. 2004) (facts
“expressly conceded” in a complaint constitute judicial admissions).). In his deposition
testimony, Plaintiff testified that he “felt a shock” from the taser and that his knees buckled.
(Thompson Dep., ECF No. 126-1 at 61.) Plaintiff is estopped from contradicting his own
admissions in his Complaint and Amended Complaint, absent a plausible explanation for the
contradiction, which appears at no point in the record. See Ryan Operations G.P. v. SantiamMidwest Lumber Co., 81 F.3d 355, 360-61 (3d Cir. 1996) (judicial estoppel is an equitable,
discretionary doctrine invoked by a court to preserve the integrity of the judicial system by
preventing parties from playing “fast and loose” in assuming inconsistent positions); see
generally Ortlieb v. Hudson Bank, 312 F. Supp.2d 705, 710 (E.D. Pa. 2004) (discussing the
history of judicial estoppel and that absent a sufficient explanation, a party should be prohibited
from taking irreconcilably inconsistent positions). Hence, Defendant’s use of the taser, which
had no effect on Plaintiff, cannot constitute excessive force.12
12
Even if the taser did work, police officers may use tasers when dealing with persons who present a safety issue
and who fail to comply with police directives where warning is given prior to deploying the taser. See Brown v.
Cwynar, 484 Fed. App’x 676, 680 (3d Cir. 2012) (citing Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 2010)).
Here, Defendant had seen Plaintiff making reaching movements under the front seat and had not yet searched the
vehicle incident to arrest; he received warning from Chief Mehalik to proceed with caution; Plaintiff had repeatedly
refused to comply with Defendant’s directive to go into cuffs; and Plaintiff admitted that he suffered no physical
injury. Hence, no reasonable jury could return a verdict in favor of Plaintiff on the issue of excessive force
concerning the taser where the amount of force in using the taser was proportional to the threat perceived by
Defendant. See generally La v. Hayducka, 269 F. Supp.2d 566, 577 (D.N.J. 2003) (section 1983 plaintiff did not
have constitutional right to resist police officers whether or not he perceived arrest to be wrongful).
15
Next, the parties agree that Defendant shocked himself with the taser. According to
Plaintiff, Defendant became angry, used racial epithets and threatened to kill Plaintiff. “The rule
is that if the physical force used is not itself excessive, i.e., is reasonable, then, merely adding
verbal threats or racial epithets cannot transform an otherwise non excessive use of force into an
unconstitutional use of excessive force.” Hudson v. Goob, No. 2:07cv1115, 2009 WL 789924, at
*12 (W.D. Pa. March 24, 2009) (citing Johnson v. City of Ecorse, 137 F. Supp.2d 886, 892 (E.D.
Mich. 2001) (“Policemen’s use of slurs and racial epithets is not a search or seizure, and thus
cannot sink to the level of violating the Fourth Amendment’s prohibition of excessive force.”);
Williams v. Belknap, 154 F. Supp.2d 1069, 1072 n.1 (E.D. Mich. 2001) (“A policeman’s
taunting, however, cannot violate the Fourth Amendment.”); Thompson v. City of Galveston, 979
F. Supp.504, 509 (S.D. Tex. 1997) (“claims of excessive force are compensable only to the
extent that an injury is caused directly by the use of excessive force, not, as alleged here, as
having been caused by an alleged use of force in addition to allegations of intimidation and
verbal threats.”)) (other citation omitted). Hence, Defendant’s alleged use of racial slurs and
verbal threats will not transform Defendant’s reasonable use of force into a Fourth Amendment
violation.
After Defendant shot himself with the taser, the pursuit around the Malibu began.
Although Defendant was commanding Plaintiff to stop, Plaintiff continued around the Malibu,
and Defendant began striking Plaintiff with the baton when Plaintiff failed to comply. At this
point, Plaintiff was able to get into the driver’s seat of the Malibu, lock the door, and start the
engine. In order to stop Plaintiff from fleeing the scene with the Malibu, which he had not yet
had the opportunity to search, Defendant used his baton to break the glass, still commanding
Plaintiff to stop. A reasonable officer would be justified in taking these actions to prevent
16
Plaintiff from fleeing the scene, believing at the time in 2008 pursuant to Thornton, 541 U.S. at
623-24, that he had a legal right to search the passenger compartment of the Malibu incident to
Sigwalt’s lawful arrest. Moreover, by this time, Plaintiff’s behavior had become so evasive and
uncooperative, that a reasonable officer could have concluded that evidence of a crime was
contained inside the Malibu.
Finally, the record evidence is clear that Defendant’s arms were still inside the driver’s
side window when Plaintiff stepped on the gas to flee the scene, that Plaintiff was leaning down
towards the passenger seat as he fled, could not see, and that he hit Chief Mehalik’s cruiser
which had arrived on the scene. Plaintiff admitted that he continued to lean towards the
passenger side of the vehicle to avoid the oncoming bullets. He admits that he drove through
yards as he fled.
Clearly, a reasonable officer in the context of these rapidly unfolding events would have
concluded that Plaintiff posed an imminent threat to the safety of Defendant, Chief Mehalik, and
any innocent bystanders, motorists and nearby residents. See Scott v. Harris, 550 U.S. 372, 381383 (2007) (officer entitled to summary judgment when using deadly force to stop reckless, high
speed flight that could have endangered the officer, other officers at the scene, and any innocent
pedestrians and civilian motorists); see also Brosseau v. Haugen, 543 U.S. 194, 200 (2004) (a car
may be used as a deadly weapon) (citing Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992) (car
can be deadly weapon and an officer’s decision to stop car from possibly injuring others was
reasonable)).
Similarly, a reasonable officer would have been concerned for the safety of Chief
Mehalik in light of the uncertainty as to whether there was a weapon in the Malibu to which
Plaintiff may have had access after he entered the driver’s side of the Malibu and locked the
17
door. Likewise, Defendant testified that he could not see Chief Mehalik after the impact and
could not tell whether he had been hit. A reasonable officer would have pursued Plaintiff in light
of what appeared to be the use of deadly force as to Chief Mehalik.
When balancing the force used by Defendant against the safety of the officers at the
scene and the possible harm to those in the immediate vicinity, Defendant’s use of force was
objectively reasonable. “Where a police officer has probable cause to believe that the suspect
poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally
unreasonable to prevent escape by using deadly force.” Hill v. Nigro, 266 Fed. App’x 219, 221
(3d Cir. 2008) (citing Tennessee v. Garner, 471 U.S. 1, 11 (1985)).
In the alternative, even if a reasonable jury could conclude from this record that any of
the force used was excessive under the particular facts of this case, Defendant is entitled to
qualified immunity. As noted in Santini, the second step of the qualified immunity analysis
addresses “‘whether, if there was a wrong, such as the use of excessive force, the officer made a
reasonable mistake about the legal constraints on his actions and should . . . be protected against
suit[.]’” Santini, 2015 WL 4620235, at *6 (quoting Curley v. Klem, 499 F.3d 199, 207 (3d Cir.
2007)). As discussed above, as of March 2008, Defendant would have reasonably believed that
he had a legal right to search the passenger compartment of the Malibu, even after Sigwalt was
secured in the police cruiser. Plaintiff’s evasive actions, reaching motions, hands visibly beneath
the seat, and eventual flight, would have led a reasonable officer to believe that evidence of
crime or other contraband was in the Malibu. Moreover, Defendant had been warned by Chief
Mehalik to exercise caution in dealing with Plaintiff, an individual he did not otherwise know.
Although Judge Leskinen indicated that Defendant’s attempt to handcuff Plaintiff was not a
18
lawful arrest, it would not have been clear to a reasonable officer that his conduct was unlawful
in light of the safety concerns Defendant confronted.
Nor would it have been clear to a reasonable officer that his conduct was unlawful when
Defendant used a taser, and then a baton, in response to Plaintiff’s repeated refusals to obey
Defendant’s commands, especially as it became clear that Plaintiff intended to flee the scene.
Finally, it would not have been clear to a reasonable officer that his conduct was unlawful
when he used deadly force to protect Officer Mehalik, innocent pedestrians, and nearby residents
when Plaintiff drove the Malibu into the side of Chief Mehalik’s patrol vehicle just as he was
exiting; drove the Malibu through a resident’s yard and driveway to get around Mehalik’s car;
and drove through other yards as Plaintiff fled the scene. All the while, Plaintiff admittedly had
his “foot on the gas, all the way to the floor,” and was not looking where he was going. As
stated by the United States Supreme Court in Scott, “we are loath to lay down a rule requiring the
police to allow fleeing suspects to get away whenever they drive so recklessly that they put other
people’s lives in danger. . . . The Constitution assuredly does not impose [an] invitation to
impunity-earned-by-recklessness.” 550 U.S. at 385-86 (emphasis in original).13
Hence, qualified immunity will protect Defendant from suit.
13
Justice Scalia also considered the relative fault of the individuals at or near the scene as follows:
We think it appropriate in this process to take into account not only the number
of lives at risk, but also their relative culpability. It was [the fleeing suspect],
after all, who intentionally placed himself and the public in danger by
unlawfully engaging in the reckless, high-speed flight that ultimately produced
the choice between two evils that [the police officer] confronted. . . . [T]hose
who might have been harmed had [the police officer] not taken the action he did
were entirely innocent. We have little difficulty in concluding it was reasonable
for [the police officer] to take the action that he did.
Scott, 550 U.S. at 384.
19
IV. CONCLUSION
For the reasons discussed above, Defendant Howard’s Motion for Summary Judgment
will be granted.
An appropriate Order will follow.
BY THE COURT
______________________
LISA PUPO LENIHAN
UNITED STATES MAGISTRATE JUDGE
Dated: August 26, 2015
cc: All counsel of record
Via electronic filing
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