PEARCE v. BOROUGH OF GLASSPORT et al
Filing
26
MEMORANDUM OPINION. Signed by Judge Mark R. Hornak on 7/15/16. (jad)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SPENCER PEARCE,
Plaintiff,
v.
BOROUGH OF GLASSPORT, et al.,
Defendants.
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Civil Action No. 2:16-cv-438
Judge Mark R. Hornak
OPINION
Mark R. Hornak, United States District Judge
I. BACKGROUND
On November 12, 2011, Jennifer Piccini suffered a gunshot wound to the head in the
parking lot of the Borough of Glassport police station. She was pronounced dead soon thereafter
at UPMC McKeesport Hospital. This case arose from the events leading up to, and following, the
shooting.
On November 12, 2013, Spencer Pearce (Ms. Piccini’s son) filed a Writ of Summons in
Pennsylvania state court. On March 7, 2016, he was granted Letters of Administration Pendente
Lite on Ms. Piccini’s Estate. ECF No. 1-3, at 9 ¶ 37; ECF No. 20-1. Thereafter, on March 16,
2016 Pearce filed a complaint in the state court case, after having been “ruled” by the Defendants
to do so. The Defendants, Borough of Glassport, Michael Piccini (Jennifer’s husband), and
Nicholas Caito, removed the case to this Court. ECF No. 1, dated April 14, 2016.
Briefly, Pearce alleges that Michael and Jennifer Piccini were involved in a personal
argument in the Borough of Glassport police station parking lot. ECF No. 1-3, at 1. Michael
Piccini—a Glassport police officer—left and sometime later Jennifer Piccini (while in the
parking lot) produced a gun and pointed it at her own head, with her finger on the trigger.
Another police officer, Defendant Nicholas Caito, confronted Ms. Piccini and aimed his TASER
at her. Id. Thereafter, Michael Piccini returned to the parking lot and ordered Caito to fire his
TASER at Jennifer Piccini. Id. Caito did so, and at or near the same time, Jennifer Piccini’s gun
fired, with the round striking her in the head. Id. Pearce alleges that the officers’ conduct
unlawfully caused Ms. Piccini’s death, namely that Tasering her while she had a gun pointed at
her head with her finger on the trigger had but one inevitable result: causing her muscles to
contract which in turn made her fire the gun.
Pearce brings nine counts. Id. at 10–18. Counts I-V are brought under 42 U.S.C. § 1983
and allege violations of various federal constitutional rights. Count VI is a wrongful death claim
under Pennsylvania law. Count VII is generally called a “Survival Action.” Counts VIII and IX
are for assault and battery and civil conspiracy under state law. Id. The Defendants moved to
dismiss all of the claims, arguing that there are procedural bars preventing recovery. ECF No. 7.
For the reasons stated in this Memorandum Opinion, that Motion will be granted in part and
denied in part, all without prejudice.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of cases that fail to
state a claim upon which relief can be granted. A court must accept all well-pleaded facts as true,
in the light most favorable to the plaintiff, but should disregard legal conclusions. Phillips v. Cty.
of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Then, the court must “determine whether the
facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for
relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (citing Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009)).
2
III. ANALYSIS
The Court will begin by discussing the survival claims followed by the wrongful death
claim. The Court will also address qualified immunity.
a. Survival Claims
Counts I-V (the § 1983 claims), Count VII (styled “survival action”),1 Count VIII and
Count IX (the state law tort claims) are “survival” claims that can be brought by a decedent’s
estate, on behalf of the decedent. See Frey v. Penn. Elec. Co., 607 A.2d 796, 798 (Pa. Super. Ct.
1992). The Defendants argue that (1) Spencer Pearce did not establish constitutional violations
against him in his individual capacity; (2) Spencer Pearce lacked and lacks standing to assert all
claims and an amendment now is prohibited under Pennsylvania law; and (3) the Defendants are
entitled to qualified immunity. ECF No. 8.
First, it is true that Spencer Pearce, in his individual capacity as Spencer Pearce, cannot
establish § 1983 claims for violations of his own constitutional rights because his rights were not
violated. However, it is clear from the face of the Complaint that Spencer Pearce brings the §
1983 claims (and all of the other survival claims) on behalf of his mother. See ECF No. 1-3, at
10–18. Each of those claims is brought by Mr. Pearce “as trustee ad litem and as Personal
Representative of the Estate of Jennifer Piccini.” Id. The caption itself is not so-styled, but the
causes of action are clearly not being brought by Spencer Pearce in his individual capacity, and
are so denominated in the Complaint.
This leads to the Defendants’ second argument: that is that Mr. Pearce lacks standing
because he is suing in his individual capacity. ECF No. 8, at 7. As explained in the previous
paragraph, that is a cramped argument that seeks formalistic dismissal of the entire case just
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“Survival action” is not a standalone cause of action so it will be dismissed without prejudice as duplicative.
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because a title is missing from the caption (and even though Mr. Pearce is attempting to sue in
the proper capacity).2
The Defendants further argue that amending the caption to indicate that Mr. Pearce is not
suing in his individual capacity is not allowed because the statute of limitations has run. Id. at 9.
The statute of limitations for the survival claims (both § 1983 and state law tort claims) is two
years. See 42 Pa. C.S. § 5524; Wilson v. Garcia, 471 U.S. 261 (1985). Defendants argue that
because Jennifer Piccini died on November 12, 2011, the statute of limitations expired on
November 12, 2013 and Spencer Pearce did not seek Letters of Administration (granting him the
right to sue on behalf of her Estate) until March 7, 2016, so the action is time-barred. ECF No. 8,
at 9. That argument has more than a few problems.
In fact, Spencer Pearce commenced the suit by filing a Writ of Summons in Pennsylvania
state court on November 12, 2013. That is within the applicable statute of limitations. Assuming
that the Defendants are right that Pearce lacked the capacity to sue at that point because he
lacked Letters of Administration (an argument the Court will address shortly), that is not a fatal
problem, at least now that we are here in federal court (at the Defendants’ behest via removal).
Federal Rule of Civil Procedure 17(a)(3)3 provides that:
[a] court may not dismiss an action for failure to prosecute in the
name of the real party in interest until, after an objection, a
reasonable time has been allowed for the real party in interest to
ratify, join, or be substituted into the action. After ratification,
joinder, or substitution, the action proceeds as if it had been
originally commenced by the real party in interest.
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If this case were still in state court that would not seem to be a problem, as the Advisory Notes to Pa. R. Civ. P.
1018 indicate that dismissal based on a captioning flaw is disfavored.
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It is indisputable that the Federal Rules of Civil Procedure apply. See Fed. R. Civ. P. 81(c)(1) (“These rules apply
to a civil action after it is removed from a state court.”).
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That protection against dismissal “is designed to avoid forfeiture and injustice when an
understandable mistake has been made in selecting the party in whose name the action should be
brought.” Gardner v. State Farm Fire and Cas. Co., 544 F.3d 553, 562 (3d Cir. 2008) (quoting
Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure, § 1555
(2d ed. 2008)). Critically, it “should be applied only to cases in which substitution of the real
party in interest is necessary to avoid injustice.” Id. This is just such a case.
If, at the time of filing the Writ of Summons, Spencer Pearce lacked the capacity to bring
the suit via holding the Letters of Administration he was evidently entitled to, under Rule 17, he
must be granted a reasonable amount of time to gain the proper status as trustee ad litem and/or
personal representative of Jennifer Piccini’s Estate.4 This is not a case like Gardner where Rule
17 did not allow a later substitution of the real party in interest when there was a transfer of an
interest by assignment. See Gardner, 544 F.3d at 562. In contrast, this is a case in which, by
filing the Complaint, the real party in interest (the personal representative) ratified the actions,
bringing it within the plain language of Rule 17(a)(3). See In re Tylenol (Acetaminophen)
Marketing, Sales Practices & Prods. Liability Litig., No. 2:13-md-02436, 2015 WL 7075812
(E.D. Pa. Nov. 13, 2015). Nor is it a case like those described in the Rule 17 Advisory Notes
where a person sees a plane crash and sues the airline in the name of John Doe in the hope that at
some later time, John Doe will transfer “his” claim to the opportunistic plaintiff. Instead, Spencer
Pearce at all times sued to vindicate the rights of his deceased mother. Unlike the plaintiff in
Garnder, he was in the line of succession, so to speak, as someone who could be a trustee ad
litem and/or personal representative of the Estate—a conclusion bolstered by the fact that he
indeed received Letters of Administration. See ECF No. 20-1. The Court concludes that if
4
And he did get personal representative status before the Complaint was filed in state court and before the case was
removed to this Court. ECF No. 20-1.
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Spencer Pearce needed to do anything now to be designated as suing in the proper capacity (and
based on the Court’s reading of Pennsylvania law and Rule 17(a)(3), it does not appear that he
has to, given that he has the Letters and has “ratified” the action), he must be granted a
reasonable time to do so. The interests of justice weigh heavily in favor of not dismissing this
case.
The person who would normally be entitled to be the trustee ad litem or Personal
Representative of Jennifer Piccini’s estate (her husband Michael Piccini) is a named Defendant
in the case, and the allegations are that he played a significant role in her death. Further, Mr.
Pearce alleges that the investigation into Ms. Piccini’s death was slow-walked by the Allegheny
County Police Department and District Attorney’s Office, such that he could not reasonably
know whether he had a valid cause of action until after the statute of limitations expired. ECF
No. 1-3, at 8. Based on those alleged facts, and the fact that Mr. Pearce now has the appropriate
Letters of Administration (and had them before the removed Complaint was filed in state court),
the Court concludes that he is entitled to proceed to the next steps in this litigation.
The Defendants also argue that under Federal Rule of Civil Procedure 15(c)(1)(A) any
amendment cannot relate back so the statute of limitations is still a bar to the suit going forward.
ECF No. 8, at 9. Rule 15, however, does not apply to a case like this. See Gardner, 544 F.3d at
561–62 (“Rule 15(c)(1) is simply not applicable here, as, by its own terms, it applies only to
amendments to the ‘party . . . against whom a claim is asserted.’”) (emphasis in original).
Spencer Pearce does not seek to add a new party, only to ensure that he is designated as the
proper one as contemplated by Rule 17.
Finally, the Court at this stage cannot rule out that the survival claims did not accrue at
the moment of Jennifer Piccini’s death. See Wallace v. Kato, 549 U.S. 384, 388 (2007) (“the
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accrual date of a § 1983 cause of action is a question of federal law that is not resolved by
reference to state law.”) (emphasis in original). Nor can the Court conclude at this stage that (1)
state equitable tolling doctrines do not apply to Pearce’s § 1983 claims or (2) state tolling
doctrines do not conflict with federal law or policy such that the running of the statute of
limitations was paused for a period of time anyway. “Under Pennsylvania’s discovery rule, the
statute of limitations should be tolled ‘until the injured party discovers or reasonably should
discover that he has been injured and that his injury has been caused by another party’s
conduct.’” Leonard v. City of Pittsburgh, No. 2:13-cv-455, 2013 WL 4541727, at *5 (W.D. Pa.
Aug. 27, 2013), aff’d, 570 F. App’x 241 (3d Cir. 2014) (quoting Fine v. Checcio, 870 A.2d 850,
859 (Pa. 2005)). It is possible that Ms. Piccini’s Estate would not have reasonably discovered the
alleged misconduct until after the statute of limitations had run, given the allegations that various
authorities dragged their feet in providing critical information. Moreover, even if no
Pennsylvania state tolling law applies, there remains the possibility that federal tolling applies.
See Leonard, 2013 WL 4541727, at *9 (if “state tolling principles contradict federal law or
policy, federal tolling principles may apply in certain limited circumstances.”) (citing Kach v.
Hose, 589 F.3d 626, 643 (3d Cir. 2009)).5
Essentially, the Defendants ask this Court to apply the “Third Circuit Rule” to use the
statute of limitations affirmative defense as a vehicle to dismiss the case at the motion to dismiss
stage. That rule “permits a limitations defense to be raised by a motion under Rule 12(b)(6), but
only if ‘the time alleged in the statement of a claim shows that the cause of action has not been
brought within the statute of limitations.’” Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir.
5
Federal tolling principles may apply “(1) where a defendant actively misleads a plaintiff with respect to her cause
of action; (2) where the plaintiff has been prevented from asserting her claim as a result of other extraordinary
circumstances; or (3) where the plaintiff asserts her claims in a timely manner but has done so in the wrong forum.”
Leonard, 2013 WL 4541727, at *9 (citing Kach, 589 F.3d at 643).
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2002) (quoting Hanna v. U.S. Veterans’ Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)). But
“[i]f the bar is not apparent on the face of the complaint, then it may not afford the basis for a
dismissal of the complaint under Rule 12(b)(6).” Id. (quoting Bethel v. Jendoco Constr. Corp.,
570 F.2d 1168, 1174 (3d Cir. 1978)). Here, given the bare (or really at this point nonexistent)
factual record and considering the allegations of the Complaint in a light most favorable to the
Plaintiff, the Court cannot conclude that a statute of limitations bar is facially and conclusively
evident. Given the allegations in the Complaint, the Court cannot conclude now that no
tolling/delay of accrual doctrine will not apply.6 Thus, the Motion to Dismiss will be denied as to
all substantive survival claims, without prejudice to the Defendants raising that defense at a later
juncture.
b. Wrongful Death Claim
That brings the Court to the state law wrongful death claim at Count VI. The Defendants
argue that this claim is time barred for largely the same reasons as the survival claims, adding the
argument that because Pennsylvania law says that the “discovery rule” does not ever toll the
statute of limitations in wrongful death cases, Pearce cannot bring this claim now. ECF No. 8, at
11. However, the same Rule 17 analysis applies to this claim because the case is now in this
Court.
On this point also, Judge Stengel’s thorough and well-reasoned opinion in In re Tylenol
leads the way. There, the court noted that “[c]ourts have routinely used Rule 17(a)(3) to allow a
party bringing a wrongful death claim in her individual capacity to later be substituted by herself
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For instance, whether any delay in the release of information to Plaintiff’s counsel was attributable to the
Defendants, whether Plaintiff proceeded with appropriate dispatch in filing suit, whether there are extraordinary
circumstances justifying tolling of the limitations period, or other similar fact-based inquiries under both state and
federal tolling principles. Kach v. Hose, 589 F.3d 626 (3d Cir. 2009) (considering application of both state law and
federal law tolling principles at the summary judgment stage); Miller v. Phila. Geriatric Ctr., 463 F.3d 266, 276 (3d
Cir. 2006) (“whether a damaged party, exercising reasonable diligence, could ascertain that he has been injured, and
by what cause, is a factual determination.”).
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in her official capacity as personal administrator.” Id. at *7 (collecting cases from several
districts and circuits). And in applying Rule 17 (which conflicted with the underlying state
(Alabama) law), the court held that though the plaintiff had not been formally appointed as the
personal representative of the estate until well after filing a Writ of Summons, she was
nevertheless entitled to ratify the action after her formal appointment and after the statute of
limitations had run. Id. at *14.7 That same principle applies here.
And even as a matter of Pennsylvania law, it appears that according to Usner v.
Duersmith, 346 Pa. 494 (1943), wrongful death plaintiffs are allowed to amend a caption to
include their designation as trustee ad litem after the statute of limitations has run. Moreover, the
Court does not believe that formal appointment by the Orphan Court as trustee ad litem is
necessary under Pennsylvania law to bring a wrongful death action. The Defendants cite
Gudalefsky v. Nipple, No. 1696-MDA-2014, 2015 WL 7016099 (Pa. Super. Ct. 2015) for that
proposition. But in Gudalefsky, the Superior Court recognized that the complaint was defective
because the plaintiff did “not claim to bring [the] action in a representative capacity nor [had]
she been appointed a trustee ad litem.” 2015 WL 7016099, at *3 (emphasis on the disjunctive
added). However, the Superior Court also held that the defect was “not necessarily fatal” and
cited to Usner. Id. at *3 n.6.8 So while in Gudalefsky there was apparently no effort to sue in the
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In the Tylenol case, the Writ of Summons identified the plaintiff as personal representative of the estate, but she
did not have the formal appointment when it was filed. Here, Spencer Pearce did not so identify himself in the
caption, but the body of the Complaint that he subsequently filed (when procedurally pressed to do so by the
Defendants) made crystal clear the capacity in which he was suing. The Defendants (who chose to be in this forum)
have not identified any prejudice they have suffered or will suffer because of the mistaken omission in the caption
and absent any prejudice, the Court will not dismiss the entire case on this basis. The essential facts, allegations, and
parties are exactly the same whether Spencer Pearce was, or is now, designated as the personal representative or
trustee ad litem. Further, the Court notes that Judge Stengel’s analysis in the Tylenol case applies with equal and full
force to the application of Rule 17 to the survival claims noted above.
8
To the extent Blackwood v. Wellspring Health, Doc. No. 2012-SU-4256-74 (Ct. Comm. Pl. York Cty. 2013) is
inconsistent with this result (and it does appear to the Court to be inconsistent), when applying Pennsylvania law the
Court will harken back to the first-year hierarchy of authority rule. The Pennsylvania Supreme Court, which has the
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proper capacity, here Spencer Pearce has Letters of Administration, has said that he sued “as
trustee ad litem and as Personal Representative of the Estate of Jennifer Piccini,” and merely
omitted that designation from the caption. And under Usner, such a mistake is not fatal. See also
Miller v. Phila. Geriatric Ctr., 463 F.3d 266, 276–77 (3d Cir. 2006) (wrongful death actions are
properly brought by child or personal representative).
The Motion to Dismiss will be denied without prejudice as to this Count.
c. Qualified Immunity
The Defendants also half-heartedly raise qualified immunity as a defense. ECF No. 8, at
15. They essentially argue that in Tasering Jennifer Piccini (which is alleged to have killed her),
the police officers were performing discretionary functions that are “shielded from liability for
civil damages.” Id. With no citation to legal authority, the Defendants at oral argument told the
Court that simply because Jennifer Piccini held a drawn handgun (pointed to her own head)
while she stood on police station property, the officers were entitled to use lethal force and to kill
her.9 This despite no pled facts suggesting that she threatened the officers (or anyone but herself)
or was seeking to “escape,” or was in the process of being arrested, nor even stating any such
limiting principles in making the argument in open Court. This also despite what would appear
to be the facially illogical argument that deploying lethal force to kill someone would be justified
ultimate say on what Pennsylvania law is, decided Usner. The Pennsylvania Superior Court decided Gudalefsky.
Those courts provide the best guidance here.
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Defense counsel contended at oral argument that killing Jennifer Piccini in the police station parking lot would
have been “justified” under state law. Pennsylvania law provides justification for the use of deadly force by law
enforcement to prevent death or serious bodily injury to law enforcement or another person, or when law
enforcement believes both that (a) such force is necessary to prevent an arrest from being defeated by resistance or
escape and (b) the person to be arrested attempted a forcible felony or is attempting to escape while possessing a
deadly weapon, or will otherwise endanger human life or inflict serious bodily injury unless arrested without delay.
18 Pa. C.S.A. § 508; see also Tennessee v. Garner, 471 U.S. 1, 3 (1985) (as a constitutional matter, law enforcement
may use deadly force against a fleeing suspect to prevent escape when 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.”). It is not selfevident to the Court how the allegations of the Complaint come within the sweep of those provisions, but they may
nonetheless apply as the record is developed in further proceedings.
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in order to prevent that person from killing themselves. According to the Defendants, her open
possession of a firearm while she stood in a police station parking lot in and of itself justified the
use of lethal force against her as a matter of law. The Court declines to reach such a sweeping
conclusion on this record and based on the straightforward application of settled state and federal
law.
“[Q]ualified immunity shields officials from civil liability so long as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Pearson v. Callahan,
555 U.S. 223, 231 (2009)). “Put simply, qualified immunity protects ‘all by the plainly
incompetent or those who knowingly violate the law.’” Id. (quoting Malley v. Briggs, 475 U.S.
335, 341 (1986)). The Defendants make no attempt to define what right was, or was not,
allegedly violated. They confuse the second prong (whether or not a reasonable state actor would
have known she was violating a right) with the non sequitur of whether or not Michael Piccini
and Nicholas Caito “acted in an unreasonable manner.” Further, qualified immunity is an
affirmative defense, so the Plaintiff “has no obligation to plead a violation of clearly established
law in order to avoid dismissal on qualified immunity grounds.” Thomas v. Independence Twp.,
463 F.3d 285, 293 (3d Cir. 2006) (“the burden of pleading qualified immunity rests with the
defendant, not the plaintiff.”).
There is simply not enough of a factual record to decide whether these police officers are
entitled to qualified immunity for their actions as pled. That is, whether the record would compel
a finding at this point that they were or were not (a) plainly incompetent, (b) knowingly violating
the law, (c) both, or (d) neither. There is no question that the use of excessive force in seizing a
person can violate a clearly established constitutional right. See, e.g., Santini v. Fuentes, 795
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F.3d 410 (3d Cir. 2015) (vacating a grant of summary judgment on qualified immunity grounds
in an excessive force case); Curley v. Klem, 298 F.3d 271 (3d Cir. 2002) (same). Here, at the
earliest of the pleading stages, there are simply far too many open factual issues 10 to assess
whether qualified immunity applies. The Motion to Dismiss on qualified immunity grounds will
be denied without prejudice.
IV. CONCLUSION
The Defendants’ Motion to Dismiss is granted without prejudice as to Count VII and
denied without prejudice in all other respects. The Plaintiff’s Motion to Amend/Correct Caption
is granted.
An appropriate Order will issue.
s/ Mark R. Hornak
Mark R. Hornak
United States District Judge
Dated: July 15, 2016
cc:
All counsel of record
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At least the following factual issues: Was Jennifer Piccini a threat of death or serious physical injury to others?
Were the Officers seeking to arrest Jennifer Piccini? Did Officer Michael Piccini act out of “public” or “private”
motives in giving his order to Officer Nicholas Caito? Was Officer Caito compelled to follow Officer Michael
Piccini’s command to shoot his TASER? Was the force used by Officer Caito excessive at all in the circumstances?
Did the use of the TASER make it all but certain that Jennifer Piccini would shoot herself in the head? Was the use
of the TASER “deadly force,” and if so, was Jennifer Piccini’s death attributable to any Defendant? Was the use of
force “justified” under Pennsylvania state law or under Tennessee v. Garner and its progeny?
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