Title Forbes v. Township of Lower Merion
Date 2002
By Alito
Subject Misc
Contents
Page 1
LEXSEE 313 F3D 144
LORENZO A. FORBES; ELLA M. FORBES, IN THEIR OWN RIGHT AND AS CO- ADMINISTRATORS OF THE ESTATE OF ERIN DUDLEY FORBES, DECEASED v. TOWNSHIP OF LOWER MERION; JOSEPH J. DALY, POLICE SUPERINTENDENT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS TOWNSHIP OF LOWER MERION POLICE SUPERINTENDENT; JOHN SALKOWSKI, OFFICER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A TOWNSHIP OF LOWER MERION POLICE OFFICER; JOHN DOE, REPRESENTING UNKNOWN EMPLOYEES OF THE LOWER MERION TOWNSHIP POLICE DEPARTMENT, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS TOWNSHIP OF LOWER MERION POLICE OFFICERS; CRAIG MCGOWAN, SGT., individually and in his official capacity as a Township of Lower Merion Police Officer c/o Lower Merion
Police Department, 71 East Lancaster Avenue, Ardmore, PA 19003; John Salkowski; Craig McGowan, Appellants
No. 01-3942
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
313 F.3d 144; 2002 U.S. App. LEXIS 25287
September 12, 2002, Argued
December 11, 2002, Filed
SUBSEQUENT HISTORY: Summary judgment granted, in part, summary judgment denied, in part by Forbes v. Twp. of Lower Merion, 2003 U.S. Dist. LEXIS
7713 (E.D. Pa., Apr. 10, 2003)
PRIOR HISTORY: **1 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA District Court Judge: Honorable William H. Yohn, Jr. (D.C. No.
00-cv--00930).
DISPOSITION: Vacated and remanded.
LexisNexis(R) Headnotes
COUNSEL: LLOYD G. PARRY (Argued), Davis, Parry
& Tyler, Philadelphia, PA, Counsel for Appellants. SHERYL S. CHERNOFF, SUSAN F. BURT (Argued), Burt-Collins & Chernoff, Merion Station, PA, Counsel for Appellees.
JUDGES: Before: ALITO and FUENTES, Circuit
Judges, and OBERDORFER, * District Judge
* The Honorable Louis F. Oberdorfer, Senior District Judge for the District of Columbia, sitting by designation.
OPINIONBY: ALITO
OPINION: *146 OPINION OF THE COURT
ALITO, Circuit Judge:
This action under 42 U.S.C. § 1983 arises out of a po- lice shooting in Lower Merion Township, Pennsylvania. Defendants John Salkowski and Craig McGowan, two police officers, appeal from an order of the District Court denying their motion for summary judgment based on qualified immunity. In denying that motion, the District Court held, without elaboration, that the plaintiffs had raised genuine issues of material fact regarding their Fourth Amendment excessive-force claim. The scope of our jurisdiction to review the **2 decision of the District Court depends upon the precise set of facts that the District Court viewed as subject to genuine dispute. Because the District Court did not identify this set of facts, we find that we are greatly hampered in deciding this appeal. Accordingly, we remand the case to the District Court so that the facts found to be in dispute can be specified. We also announce a supervisory rule to be followed in all subsequent cases in which a summary judgment motion based on qualified immunity is denied on the ground that material facts are subject to genuine dispute. So that we can carry out our review function without exceeding the limits of our jurisdiction under Johnson v. Jones, 515 U.S.
313 F.3d 144, *146; 2002 U.S. App. LEXIS 25287, **2
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304, 132 L. Ed. 2d 238, 115 S. Ct. 2151 (1995), we will henceforth require the District Courts to specify those ma- terial facts that are and are not subject to genuine dispute and explain their materiality.
I.
In the early-morning hours of January 10, 2000, Mr. Erin Dudley Forbes concluded his shift working as a secu- rity guard and stopped at an A-Plus convenience store in Bryn Mawr, Pennsylvania. Shortly thereafter, the clerk telephoned 911, reporting that Forbes **3 had robbed the store and beaten the clerk over the head with "what looked like a billy jack." The clerk told police that the assailant was not otherwise armed and described Forbes and his car. Dispatchers transmitted the description of the fleeing suspect on police radio and announced that a robbery had occurred.
Police caught up with Forbes in Lower Merion Township after an automobile pursuit, and at least some of the events that followed were captured on a grainy police videotape that is part of the record of this case. The parties agree that the officers surrounded Forbes's car and shouted com- mands and that Forbes then extended his middle finger and bolted from the car, *147 brandishing a heavy wooden staff. Here the parties' accounts diverge. The officers claim that Forbes charged "right at" police and motioned to at- tack a retreating Salkowski. By contrast, the plaintiffs claim that Forbes darted away from the officers, but they appear to concede that the trajectory of his footpath tri- angulated towards the direction in which Salkowski also ran. Salkowski fired one shot, felling Forbes.
After Forbes was shot, he lay on the ground, "mumbling" or "moaning," still clutching the **4 staff, with one hand obscured. McGowan then kicked the staff aside and ordered Forbes to show his hands. Whether Forbes suf- fered from delirium or fading consciousness or simply in- tended to resist police, he did not comply. McGowan then sprayed him once with pepper spray, called paramedics, and minutes later shackled his hands with the help of another officer. The defendants claim that Forbes fought the handcuffing, but according to the plaintiffs, Forbes offered "no resistance to the handcuffing" and was "mo- tionless" by that point. After Forbes was restrained, police began administering first aid. Doctors pronounced Forbes dead roughly a half hour after the shooting.
Forbes's parents filed this action against Salkowski and McGowan under 42 U.S.C. § 1983, alleging that the of- ficers violated Forbes's rights under the Fourth, Fifth, and Fourteenth Amendments. The officers moved for summary judgment, asserting that the plaintiffs' claims
were defeated by qualified immunity, but the District Court denied summary judgment on the plaintiffs' Fourth Amendment excessive-force claim on the ground that genuine issues of material fact existed regarding that claim. **5 The Court did not specify which material facts it viewed as subject to genuine dispute, however, and this appeal followed.
II.
Although 28 U.S.C. § 1291 ordinarily limits appellate jurisdiction to "appeals from . . . final decisions of the dis- trict courts," certain collateral orders merit interlocutory review because they "finally determine claims of right . .
. too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). When a defendant moves for summary judgment based on qualified immunity, the denial of the motion may be appealed immediately under the collateral-order doctrine because "the entitlement is an immunity from suit rather than a mere defense to lia- bility and . .. is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S.
511, 526-27, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). However, this right to interlocutory review is limited "to the extent that a claim of qualified **6 immunity turns on an issue of law." Id. at 530. For instance, we may "review whether the set of facts identified by the dis- trict court is sufficient to establish a violation of a clearly established constitutional right," but we may not "con- sider whether the district court correctly identified the set of facts that the summary judgment record is sufficient to prove." Ziccardi v. City of Philadelphia, 288 F.3d 57,
61 (3d Cir. 2002). When a defendant argues that a trial judge erred in denying a qualified-immunity summary- judgment motion because the judge was mistaken as to the facts that are subject to genuine dispute, the defendant's argument cannot be entertained under the collateral-order doctrine but must instead await an appeal at the *148 conclusion of the case. See Johnson, 515 U.S. at 313-16.
Qualified immunity insulates from civil liability govern- ment officials performing discretionary functions insofar as "their actions could reasonably have been thought con- sistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638, 97 L. Ed. 2d
523, 107 S. Ct. 3034 (1987). In assessing a claim of **7 qualified immunity, we must review the law relevant to the official's behavior and ask whether the official could have believed that his or her actions were justified by law. See Good v. Dauphin Cty. Soc. Servs., 891 F.2d 1087, 1094
(3d Cir. 1989). The second part of this inquiry contains
313 F.3d 144, *148; 2002 U.S. App. LEXIS 25287, **7
Page 3
two components. To overcome the defense of qualified immunity, (1) the facts, "taken in the light most favorable to the party asserting the injury, must show the officer's conduct violated a constitutional right," Saucier v. Katz,
533 U.S. 194, 201, 150 L. Ed. 2d 272, 121 S. Ct. 2151
(2001), and (2) "the contours of the right must be suffi- ciently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483
U.S. at 640.
Qualified immunity is defeated if an official "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the plaintiff , or if he took the action with the malicious intention to cause a de- privation of constitutional rights or other injury." Wood v. Strickland, 420 U.S. 308, 322, 43 L. Ed. 2d 214, 95
S. Ct. 992 (1975). **8 The doctrine aims to exclude
"the plainly incompetent" and "those who knowingly vio- late the law" while accommodating reasonable "mistaken judgments." Hunter v. Bryant, 502 U.S. 224, 229, 116 L. Ed. 2d 589, 112 S. Ct. 534 (1991) (citation and internal quotation marks omitted). If an official could have rea- sonably believed that his or her actions were lawful, the official receives immunity even if in fact the actions were not lawful.
III.
In this case, the District Court denied Salkowski's and McGowan's summary-judgment motions without identi- fying the set of material facts that the Court viewed as subject to genuine dispute. As a consequence, we are greatly hampered in ascertaining the scope of our juris- diction. If the District Court had specified the material facts that, in its view, are or are not subject to genuine dis- pute, we could "review whether the set of facts identified by the district court as not subject to genuine dispute is sufficient to establish a violation of a clearly established constitutional right," Ziccardi, 288 F.3d at 61, but based on the District Court's spare comments in denying the defendants' summary-judgment motion, **9 we are hard pressed to carry out our assigned function. We do not fault the District Court for not specifically identifying the genuinely disputable material facts because our prior qualified-immunity cases have not imposed the require- ment. However, we find that the lack of such a specifica- tion impairs our ability to carry out our responsibilities in cases such as this.
In analogous situations where clearer statements of law or references to the record are necessary to facilitate mean- ingful appellate review, this Court has announced super- visory rules regulating important procedural matters. For
example, in Vadino v. A. Valey Engineers, 903 F.2d 253
(3d Cir. 1990), we reviewed a grant of summary judg- ment whose reasoning was not apparent from the record and which did not provide any indication of the grounds on which it was based. We noted that a requirement that District Courts *149 accompany such orders with some articulation of their reasoning would not impose a se- rious burden, would assist parties in crafting appellate briefs responsive to dispositive issues, and would clearly frame appellate review. Thus, we exercised our supervi- sory power "to require the district courts **10 in this circuit to accompany grants of summary judgment here- after with an explanation sufficient to permit the parties and this court to understand the legal premise for the court's order." Vadino, 903 F.2d at 259. Other situations in which we have established similar supervisory rules include, e.g., Sowell v. Butcher & Singer, Inc., 926 F.2d
289, 295 (3d Cir. 1991) (holding that a court entering a directed verdict pursuant to Rule 50 should "set forth an explanation sufficient to permit this court to understand the legal premise for the court's order") (citation and inter- nal quotation marks omitted); Quality Prefabrication, Inc. v. Daniel J. Keating Co., 675 F.2d 77, 81 (3d Cir. 1982)
(ruling that "a dismissal of a complaint with prejudice as a Rule 37 sanction must be accompanied by some artic- ulation on the record of the court's resolution of the fac- tual, legal, and discretionary issues presented"); and Allis- Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360,
364 (3d Cir. 1975) (holding that entry of final judgment on a claim in a multiparty action pursuant to Rule 54(b) should "clearly articulate the reasons and factors under- lying **11 the decision to grant 54(b) certification").
"It is essential . . . that a reviewing court have some basis for distinguishing between well-reasoned conclusions ar- rived at after a comprehensive consideration of all relevant factors, and mere boiler-plate approval phrased in appro- priate language but unsupported by evaluation of the facts or analysis of the law." Protective Committee for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390
U.S. 414, 434, 20 L. Ed. 2d 1, 88 S. Ct. 1157 (1968).
At least one other Circuit has encountered the same diffi- culty in the qualified-immunity context that motivates us to act in a supervisory capacity here. See Beck v. Schwartz,
992 F.2d 870, 871 (8th Cir. 1993) (holding that it was "er- ror" for "the district court to overrule appellant's motion for summary judgment without reference to the qualified immunity defense"). Our approach differs from Beck's. We cannot hold that the District Court's denial of summary judgment constituted error here because in the absence of a clear supervisory rule, the Federal Rules of Civil Procedure do not impose on trial courts the responsibility to accompany such **12 an order with conclusions of law. See FED. R. CIV. P. 52(a) ("Findings of fact and con-
313 F.3d 144, *149; 2002 U.S. App. LEXIS 25287, **12
Page 4
clusions of law are unnecessary on decisions of motions under Rule . . . 56. . . ."). We instead exercise our supervi- sory power to require that future dispositions of a motion in which a party pleads qualified immunity include, at minimum, an identification of relevant factual issues and an analysis of the law that justifies the ruling with respect to those issues.
Having concluded that a supervisory rule is necessary in this context, it falls upon us to determine the appropri- ate disposition of the instant appeal. In Vadino, we lim- ited our supervisory rule to future cases and proceeded to address the merits rather than remand the case to the District Court. See 903 F.2d at 259-60. That approach is common when the record provides sufficient guidance for an appellate court seeking to retrace the analytical steps taken by the District Court. See also, e.g., Quality Prefabrication, Inc. v. Daniel J. Keating Co., 675 F.2d
77, 81 (3d Cir. 1982); Solomon v. Continental Am. Life Ins. Co., 472 F.2d 1043, 1048 (3d Cir. 1973). By con- trast, in Allis-Chalmers, we did **13 not address the merits of the appeal with finality and "remanded only for a *150 statement of reasons so that this Court may properly determine" whether the original decision was proper. 521 F.2d at 367 n.16 (emphasis removed). Such a remand is favored when the record omits key information, e.g., Gould v. Members of the New Jersey Div. of Water Policy and Supply, 555 F.2d 340, 341 (3d Cir. 1977), or when the lack of sufficient articulation for the decision renders appellate review unduly speculative. Farnese v. Bagnasco, 687 F.2d 761, 766 (3d Cir. 1982). In this case, although we are satisfied with the record's completeness, we are persuaded to remand by our desire not to conduct a narrower or more expansive review than is required by the precise contours of the District Court's order. Since we are unable to identify those contours, we proceed to detail the parameters of the articulation necessary for us to conduct a meaningful review.
IV.
We are familiar with the various factual disputes between the parties and would find it helpful in deciding this ap- peal for the District Court to identify which such disputes it found genuine and material. **14
The plaintiffs, as noted, assert that Forbes bolted away from the officers as they converged on him, and they there- fore dispute Salkowski's argument that he shot Forbes in self-defense. A diagram depicting the position of Forbes's body relative to the street and cars appears to consti- tute one of the plaintiffs' principal items of evidence on this question. The plaintiffs also refer to the police video recording and cite an examiner's report on the trajectory
of the bullet through Forbes's body. We are interested to know whether the District Court found that these items of evidence were sufficient to raise genuine factual disputes regarding Forbes's location, the direction in which he was facing, or his direction of movement at the moment of the shooting, and, if so, whether the plaintiffs' allegations are sufficient to establish a violation of a constitutional right.
Appellants dispute the materiality of Forbes's location and direction, arguing that Salkowski could reasonably have believed himself legally entitled to fire his weapon in any event. Pennsylvania law empowers police officers to use deadly force when "(i) such force is necessary to prevent
an arrest from being **15 defeated by resistance or escape; and (ii) the person to be arrested has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon." 18 PA. CONS. ST. §
508(A)(1) (2002). The officers argue that a reasonable person in Salkowski's position, in reliance on that statute, could have believed it lawful to act as Salkowski did. Consequently, another important question is whether the District Court found that a genuine issue of fact existed as to whether Forbes's wooden staff was or might reasonably be perceived as a deadly weapon. During oral arguments, Appellees maintained that a factual issue existed regard- ing this question but conceded that the statute did not implicate any other material issues.
The parties do not propose a statutory framework that covers McGowan's conduct, so we are even more hesi- tant to surmise what factual issues the District Court may have identified or considered material. At minimum, it would aid us to know if the District Court concluded that the Appellees raised genuine issues regarding whether Forbes posed any danger to the officers after being shot or whether police could reasonably assume that he might. If the District **16 Court considered any other fac- tual issues bearing on whether McGowan's conduct was objectively unreasonable or whether it interfered with a clearly established constitutional right, a *151 descrip- tion and analysis of those issues would likewise assist us considerably.
The judgment of the District Court is vacated, and we re- mand the case for reentry of judgment in accordance with the supervisory rule announced herein. This panel shall retain jurisdiction and proceed to decide any questions properly within our jurisdiction after the District Court provides the requested specification. n1
n1 Judge OBERDORFER concurs in the re- sult and in parts I, II, and IV of the opinion. As a visiting judge he expresses no opinion about the supervisory rule established for the Circuit in part
313 F.3d 144, *151; 2002 U.S. App. LEXIS 25287, **16
III.
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