WILLIS v. MONTANI et al
MEMORANDUM OPINION re 72 MOTION for Summary Judgment filed by JUSTIN MONTANI. Details more fully stated in Opinion. An appropriate order follows. Signed by Judge Joy Flowers Conti on 11/14/2023. (lyk)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 2:21-cv-221
JUDGE JOY FLOWERS CONTI
Pending before the court is a motion for partial summary judgment (ECF No. 72) filed on
behalf of Defendant, police officer Justin Montani (“Montani”) of the Raccoon Township Police
Department (“RTPD”), with concise statement of material facts (“CSMF”), appendix and brief in
support (ECF Nos. 70, 71, 73). Plaintiff Emmitt Willis (“Willis”) filed a response in opposition,
his own CSMF, a response to Montani’s CSMF and an appendix (ECF Nos. 75-78). Montani
filed a reply brief and a responsive CSMF (ECF Nos. 79, 80). A combined concise statement of
material facts (“CCSMF”) was filed on October 23, 2023 (ECF No. 81).
Although Montani captioned his motion as one for “partial” summary judgment, he seeks
dismissal with prejudice of count 1 (excessive force) and he requests that the court “enter
judgment in his favor and against Plaintiff.” (ECF No. 72). The motion is ripe for decision.
II. Factual and Procedural History
At a status conference on February 28, 2023, Willis withdrew all claims except the
excessive force claim. See Order (ECF No. 63). The factual record is construed in the light most
favorable to Willis, the nonmovant. 1
This case arises out of an incident on January 3, 2021. Willis was driving his girlfriend’s
car while delivering groceries to a customer. CCSMF at 17. Montani was off-duty and driving
his personal vehicle (which did not have police lights or a siren or visible police markings) on his
way to work. CCSMF at 21. According to Sergeant Ronald Lutton (“Lutton”), second in
command at RTPD, their policy prohibits off-duty officers from making traffic stops in their
personal vehicles, except in circumstances of an imminent threat to the safety of the officer or
others. CCSMF at 21, 31.
On Green Garden Road, a two-lane road with a 45-mile per hour speed limit, a semi-truck
tanker slowed down to 15 miles per hour up a steep hill and moved over to the edge of the road
to allow Willis’ car and other vehicles to pass. CCSMF at 17-18. Willis, and Montani close
behind him, passed the tanker. Montani followed Willis (who was driving the speed limit) and
did not call to report a violation or seek assistance. A few miles later, on Patterson Road,
Montani swerved into the opposing lane of traffic, pulled directly beside Willis, brandished his
service weapon at him, and attempted to hit Willis’ back tire. CCSMF at 19-20.
Willis crashed into a parked car. CCSMF at 22. Willis immediately put his hands on the
roof of his car. Id. Within seconds, Montani approached Willis with his gun drawn. Id.
Montani saw that Willis was unarmed. Montani’s weapon remained drawn. Id. According to
Lutton, RTPD police officers must holster their weapons before going “hands on” with a suspect.
CCSMF at 32. Montani punched Willis and pulled Willis out of the car. CCSMF at 23, 25.
Willis never resisted arrest and went right to the ground. CCSMF at 24.
The CCSMF will be cited for the facts favorable to Willis.
Montani pressed the barrel of his firearm into the small of Willis’ back as Montani straddled
Willis’ legs. CCSMF at 26. Montani discharged his firearm while he was trying to handcuff
Willis. Id. The discharge went into the ground directly beside Willis. CCSMF at 27. Montani
testified that the discharge was accidental. After the discharge, Montani punched Willis a second
time, knocking his glasses off. CCSMF at 27, 29. Montani handcuffed Willis, but did not tell
Willis why he was being arrested. CCSMF at 28.
Montani called Lutton to come to the scene. CCSMF at 30. While waiting for Lutton,
Montani picked up the spent shell casing from the ground. CCSMF at 31. Lutton learned from
dispatch that Montani discharged his weapon. CCSMF at 30. There were two eyewitnesses to
the incident, Michael Palmer and Karl Nejak, who provided deposition testimony. 2 CCSMF at
Standard of Review
The court summarized the familiar summary judgment standard in SodexoMAGIC, LLC v.
Drexel Univ., 24 F.4th 183 (3d Cir. 2022), as follows:
The summary judgment standard has not substantively changed since a trilogy of
Supreme Court cases on the topic in 1986. By the text of Rule 56, summary
judgment is appropriate “if 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); see also Brooks v. Kyler, 204 F.3d 102, 105 n.5 (3d Cir. 2000). As
explained by the Supreme Court, for a factual dispute to be material, its resolution
must have the potential to affect the outcome of the suit. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute
is genuine “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party,” id., but “the mere existence of a scintilla of evidence”
favoring the non-moving party will not prevent summary judgment, id. at 252, 106
S.Ct. 2505. See also Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288–89 (3d Cir.
2018). Still, in assessing the genuineness of a potential factual dispute, inferences
from the underlying facts should be drawn in favor of the nonmoving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986); In re IKON Office Solutions, Inc., 277 F.3d 658, 666
Some of these facts are disputed but, to repeat, at the summary judgment stage the record must be construed in the
light most favorable to the nonmoving party, Willis.
(3d Cir. 2002). But if the nonmoving party “fails to make a showing sufficient to
establish the existence of an element essential to [its] case, and on which [it] will
bear the burden of proof at trial,” then summary judgment is appropriate for the
moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986).
SodexoMAGIC, 24 F.4th at 203–04.
A. Legal Overview
Section 1983 affords a means to redress violations of federal law committed by state actors.
In pertinent part, § 1983 provides as follows:
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. ...
42 U.S.C. § 1983. As explained in Washington v. Delisma, No. 3:19-CV-00196, 2022 WL
1462291, at *1 (W.D. Pa. Mar. 31, 2022), aff'd sub nom. Washington v. Delsima, No. 22-1874,
2022 WL 3009743 (3d Cir. July 29, 2022):
Section 1983 is not a source of substantive rights, but merely a method for
vindicating violations of federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284–
85, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204
(3d Cir. 1996). To establish a Section 1983 claim, a plaintiff must show a
deprivation of a “right secured by the Constitution and the laws of the United States
... by a person acting under color of state law.” Id. (quoting Mark v. Borough of
Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).
Id. at *8. There is no dispute that Montani was acting under color of state law at all times
relevant to this litigation.
This case involves disputes arising under the Fourth Amendment, made applicable to the
states through the Fourteenth Amendment. Whiting v. Bonazza, No. CIV. 09-1113, 2011 WL
500797, at *6 (W.D. Pa. Feb. 10, 2011). The elements of an excessive force claim are: “(a) a
seizure occurred; and (b) that seizure was unreasonable.” El v. Wehling, 2015 WL 1877667, at
*8 (D.N.J. Apr. 23, 2015) (citing Rivas v. City of Passaic, 365 F.3d 188, 198 (3d Cir. 2004)).
The Supreme Court instructs that claims of excessive force implicating the Fourth Amendment
are heavily dependent on the factual context, which at the summary judgment stage must be
viewed in the light most favorable to the nonmoving party:
In assessing a claim of excessive force, courts ask “whether the officers’ actions
are ‘objectively reasonable’ in light of the facts and circumstances confronting
them.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443
(1989).2 “A court (judge or jury) cannot apply this standard mechanically.”
Kingsley v. Hendrickson, 576 U.S. 389, 397, 135 S.Ct. 2466, 192 L.Ed.2d 416
(2015). Rather, the inquiry “requires careful attention to the facts and circumstances
of each particular case.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. Those
circumstances include “the relationship between the need for the use of force and
the amount of force used; the extent of the plaintiff ’s injury; any effort made by
the officer to temper or to limit the amount of force; the severity of the security
problem at issue; the threat reasonably perceived by the officer; and whether the
plaintiff was actively resisting.” Kingsley, 576 U.S. at 397, 135 S.Ct. 2466.
Lombardo v. City of St. Louis, Missouri, 141 S. Ct. 2239, 2241 (2021) (reversing a grant of
summary judgment in favor of the officer). The court emphasized: “Such details could matter
when deciding whether to grant summary judgment on an excessive force claim.” Id. The court
reiterated that the record evidence must be viewed in the light most favorable to the plaintiff. Id.
B. Application to this case
Here, there is no dispute that a seizure occurred. The issue is whether the seizure was
reasonable. Montani’s motion is narrowly focused on whether or not his discharge of his
weapon was accidental. Montani argues, citing Brice v. City of York, 528 F. Supp.2d 504 (M.D.
Pa. 2007), that because an excessive force claim cannot be based on non-volitional acts, Willis’
claim fails as a matter of law because Montani’s discharge of his firearm was accidental.
Willis, in response, maintains that his excessive force claim is not limited to the discharge
of the firearm, but is based on the entire incident, which included numerous volitional acts by
Montani. Willis argues that a reasonable jury could find that Montani acted unreasonably in
following Willis; pulling alongside him; brandishing his weapon from the car; forcing Willis to
crash; pulling Willis out of the car with his weapon drawn; pressing the firearm into the small of
Willis’ back; and punching him multiple times when Willis did not resist. Willis also challenges
Montani’s self-serving testimony that the discharge was accidental. He contends that a jury
could conclude, from the objective circumstances, that Montani intentionally discharged his
weapon in order to secure Willis’ compliance with being handcuffed.
Montani’s reliance on Brice is misplaced. Brice appears to represent a minority position
and there is no precedential decision issued by the Court of Appeals for the Third Circuit. In
Stamps v. Town of Framingham, 38 F. Supp. 3d 146, 152 (D. Mass. 2014), aff'd, 813 F.3d 27
(1st Cir. 2016), the court commented that “[m]ultiple courts have concluded or at least suggested
that the accidental firing of a weapon in the course of an intentional seizure can give rise to an
excessive force claim under the Fourth Amendment.” Id. at 152 (collecting decisions of the
courts of appeals for the 4th, 5th, 6th, 8th and 9th circuits). The court explained: “After Graham,
the law has been clear that it does not matter whether the police officer subjectively intended no
harm—that is, whether it was an ‘accident,’ as opposed to an intentional infliction of harm.
Instead, the question is whether the police officer's conduct was objectively reasonable.” Id. at
The court concluded in Stamps that “in light of the Supreme Court precedent and the
overwhelming weight of appellate authority, it was clearly established as of January 5, 2011, that
an unintentional shooting during an intentional seizure can constitute excessive force if the
officer's conduct leading to the accident was objectively unreasonable.” Id. The court
specifically commented that Brice, to the extent it turned “on the officer's subjective intent (that
is, whether the shooting in question was an “accident”) rather than the objective reasonableness
of the officer's actions (that is, whether the officer's conduct, from an objective viewpoint,
resulted in excessive force) [ ] appear[s] to be wrongly decided.” Id. n.8.
On appeal, the First Circuit Court of Appeals affirmed and explained:
There is widespread agreement among the circuits that have addressed the issue
that a claim is stated under the Fourth Amendment for objectively unreasonable
conduct during the effectuation of a seizure that results in the unintentional
discharge of an officer's firearm. That reasoning underlies the decisions in recent
cases like Estate of Bleck ex rel. Churchill v. City of Alamosa, 540 Fed.Appx. 866,
874–77 (10th Cir. 2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 2845, 189 L.Ed.2d
808 (2014), and Watson v. Bryant, 532 Fed.Appx. 453, 457–58 (5th Cir. 2013) (per
curiam) (“An undisputedly accidental shooting ... does not end the inquiry. [The
officer] still may have violated the Fourth Amendment if he acted objectively
unreasonably by deciding to make an arrest, by drawing his pistol, or by not
reholstering it before attempting to handcuff [the plaintiff].”). As the en banc court
stated in Henry v. Purnell, 652 F.3d 524 (4th Cir.2011) (en banc), cert. denied, ––
– U.S. ––––, 132 S.Ct. 781, 181 L.Ed.2d 488 (2011), “[a]ll actions, ... mistaken or
otherwise, are subject to an objective test,” id. at 532.
Stamps v. Town of Framingham, 813 F.3d 27, 37 (1st Cir. 2016)
This court need not finally determine whether Brice was wrongly decided because the
facts and legal issue in Brice are distinguishable from this case. In Brice, it was uncontested that
the discharge was accidental. Here, the issue is disputed. Although Willis testified in his
deposition that he had no way of knowing why Montani discharged the weapon (i.e., Montani’s
subjective intent), plaintiff’s counsel argues strenuously that a reasonable jury could infer from
the objective circumstances an intent by Montani to fire the gun to secure Willis’ compliance
with being handcuffed. The court agrees with plaintiff that under the circumstances of this case,
the jury could disbelieve Montani’s self-serving testimony that the discharge was accidental.
In Brice, the focus of the inquiry was whether an accidental shooting could constitute a
“seizure.” The court explained that a “seizure” must result from volitional police activity. Brice,
528 F. Supp.2d at 510. In this case, it is undisputed that there was a seizure. Montani seized
Willis – wholly apart from the discharge of his firearm – and placed him in handcuffs. The issue
in this case, in contrast to Brice, is whether Montani’s conduct throughout the encounter was
“reasonable.” That is a quintessential jury question. Curley v. Klem, 298 F.3d 271, 278 (3d Cir.
2002) (“the existence of disputed historical facts material to the objective reasonableness of an
officer's conduct will give rise to a jury issue.”); Rawlings v. SEPTA, No. 2:19-CV-04698, 2022
WL 15525755, at *6 (E.D. Pa. Oct. 27, 2022) (“At minimum, material questions of fact exist as
to whether the Officers reasonably believed Plaintiff's flight posed a risk to them or others,
which should be resolved by a jury.”) (citation omitted).
Here, unlike Brice, viewed in the light most favorable to Willis, there is a pattern of
alleged unreasonable conduct by Montani in initiating and pursuing the chase, causing the crash
and engaging in a hands-on encounter with a drawn weapon. As the court noted in Stamps, it has
long been clearly established “that the unintentional or accidental use of deadly force during a
seizure can give rise to a constitutional violation if the officer has acted unreasonably in creating
the danger.” Stamps, 38 F. Supp.3d at 154 (citations omitted). The court reiterated: “Since
Brower, every circuit court to consider the issue has concluded or at least suggested that the
unintentional discharge of a firearm during a seizure can give rise to a Fourth Amendment claim
if the officer's actions leading up to the shooting were objectively unreasonable.” Id. at 155.
Summary judgment is not appropriate in this case because a reasonable jury, viewing the
record in the light most favorable to Willis, could conclude that Montani acted unreasonably
leading up to the discharge of his weapon.
For the reasons set forth above, the motion for summary judgment (ECF No. 72) will be
denied. A pretrial scheduling conference will be held by telephone on November 28, 2023 at
An appropriate order follows.
Dated: November 14, 2023
BY THE COURT,
/s/ Joy Flowers Conti
Joy Flowers Conti
Senior United States District Judge
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