January 27, 2017 Legal Update

February 3, 2017 Legal Update

February 10, 2017 Legal Update



January 27, 2017


This may be a “stump the chump” question.
We were approached by our ambulance DC which generated this question/concern. A short time ago PD and our EMS provider were dispatched to a possible opioid OD. Upon arrival the patient was conscious and alert. He had been given a dose of Narcan by his girlfriend prior to police and EMS arrival and the patient refused medical transport to the hospital.
Per their EMS protocol, EMS contacted their medical command at the hospital and the Dr. ordered them to transport the patient even though he refused. Under the statewide guidelines for BLS transport, Medical Command can order the ambulance to transport and he may order the EMS practitioner to contact police to facilitate transport against the patients will. The Dr. did so on this job ordering the EMS guys to use the police to facilitate transport. The Cops refused to assist the ambulance in forcibly transporting the patient, which I believe was the right decision.
My question and concern here is forcibly taking custody of the refusing patient without a warrant, court order or exigent circumstances. We bounced this around for quite a while without coming to an adequate solution.
My concern is a 1983 claim of a unwarranted seizure by the police since we are the governmental entity involved. Can you offer any insight on this topic?? I’ve attached a copy of the BLS statewide regulations for your review.
Mighty Mouse
Excellent question MM. Thank you. I had a look at the BLS guidelines which are, of course, not binding on the police. I agree that officers did the right thing in refusing to forcibly transport the patient UNLESS the medical command who authorized the transport was willing to involuntarily commit the patient as a danger to himself and incapable of making the decision for himself as a result. (Sure, kidnappings can be fun but, as you said, they can also land us in federal court) If the doctor or EMS are going to 302 (involuntarily commit under PA law for you folks outside the Commonwealth) then we can use REASONABLE force to assist. Common sense requires us to try and get Opie the Opioid Abuser to see the light, because, when that Narcan wears off, he is going to feel rode hard, and hung up wet. As you know, when that happens, you'll be getting another call…
Chris "The Chump" Boyle

COMMENT: This week's case comes to us from the state of boardwalks and traffic circles the lovely, New Jersey. It presents an interesting case of what to do when called to a civil dispute and, while everything turns out well for our heroes in the end, perhaps I may be so bold as to offer an alternative suggestion to arrest when one bozo says the other bozo owes him money – stay out of it. Disputes like the one you are about to read (and mechanics' liens as well) present an opportunity for us to "the right thing" which can often land up being "the unconstitutional thing" when it comes to a private property dispute. There will almost always be one side that is more sympathetic than the other, and we will want to help them out. When it comes to property disputes however, best thing is to refer everyone to the civil courts…
Batiz v. Brown, 2017 U.S. App. LEXIS 1308 (3rd Circuit January 26, 2017)(not precedential)
Luis Batiz and Cordelia Challenger appeal the District Court's order dismissing their claims against members of the New Jersey State Police. We will affirm.
On February 23, 2010, Luis Batiz called the New Jersey State Police to aid in a repossession dispute with storage company 1-800-PACKRAT. Pack Rat employees were attempting to repossess a storage pod used by Batiz because he was allegedly several months behind on payments. Before the state troopers arrived, Batiz took Pack Rat's lifting bar-a device needed to lift the pod onto the Pack Rat truck-and his wife Cordelia Challenger [Coolest Name in a while. The Chump] blocked the Pack Rat truck with her car.
Two state troopers arrived at the Batiz residence, which they described as a "chaotic scene." App. 87. State Trooper D.K. Detullio attempted to defuse the situation by permitting Batiz "to remove his personal belongings from the storage pod and allow[ing] Pack Rat to leave with it." App. 7. Detullio also instructed Batiz to return the lifting bar. Although Batiz complied with these instructions, he was displeased and felt that Detullio did not have the authority to interfere in a civil dispute.
While on the scene, Detullio asked Batiz and a Pack Rat employee for identification, which Detullio described as "common practice." App 107. Batiz refused, saying: "I don't see the purpose of giving you that information." Supp. App. 108. After several more requests, Batiz became "very, very paranoid" and said, "all I'm going to give you is my name." Supp. App. 110. When Detullio insisted on obtaining Batiz's identifying information, Batiz declared: "I need you to leave and I need you to leave right now." Supp. App. 112. Detullio then placed Batiz under arrest. At the police station, Batiz continued to refuse to provide any identification and would not allow police to photograph or fingerprint him.
While Batiz was in custody, Challenger drove to the precinct and was asked to identify Batiz. She responded: "Well if he's there, you have to get information from him. I'm not giving it to you." Supp. App. 283. She was then handcuffed to a bench and released one hour later.
That same day, Detullio filed a criminal complaint charging Batiz with four offenses under New Jersey state law: theft, obstructing administration of law, hindering apprehension, and disorderly conduct. Detullio obtained a warrant for Batiz's arrest from a New Jersey municipal court judge and Batiz was committed to county jail on that warrant. For her role in the incident, Challenger was charged with hindering apprehension.
On August 4, 2010, Batiz and Challenger were tried in New Jersey municipal court. Batiz was convicted of theft, obstruction, and disorderly conduct, but he and Challenger were acquitted of the hindering apprehension charges. The New Jersey Superior Court, Law Division, granted a trial de novo and convicted Batiz solely on the theft charge. But the Appellate Division of the New Jersey Superior Court reversed that conviction, reasoning that Batiz was entitled to temporarily seize the lifting bar to prevent Pack Rat from taking his property. Having been fully acquitted of all criminal charges, Batiz and Challenger filed this civil lawsuit against State Troopers Detullio and M.D. Brown pursuant to 42 U.S.C.
§ 1983. Batiz and Challenger asserted claims of false arrest, false imprisonment, malicious prosecution, abuse of process, and conspiracy to deprive civil and constitutional rights. On summary judgment, the District Court dismissed all but Batiz's malicious prosecution claims. After trial on those claims, the District Court granted Detullio's motion for a directed verdict. Batiz and Challenger filed this appeal.
We exercise plenary review over both the District Court's summary judgment, Duffy v. Paper Magic Grp., Inc., 265 F.3d 163, 167 (3d Cir. 2001), and its directed verdict, Macleary v. Hines, 817 F.2d 1081, 1083 (3d Cir. 1987).
Challenger alleges that the District Court erred in granting summary judgment on her false arrest claim. She claims there was no probable cause to detain her on hindering charges because her refusal to identify Batiz falls outside the plain language of the statute. Under New Jersey law, a person commits the crime of hindering apprehension if: "with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another, . . . [she s]uppresses, by way of concealment or destruction, any evidence of the crime . . . which might aid in the discovery or apprehension of such person or in the lodging of a charge against him." N.J. Stat. Ann. § 2C:29-3(a), (a)(3).
1The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367. We have jurisdiction under 28 U.S.C. § 1291.
The District Court entered summary judgment for two independent reasons. First, it explained that a "reasonable person would have determined that [Challenger] was refusing to provide [the requested] evidence of her husband's identity, while knowing her husband was being investigated, for purposes of hindering the troopers' investigation of him." App. 22. Whether or not this holding is correct, we readily agree with the District Court's second holding that Challenger's suit was barred by qualified immunity.
"[Q]ualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Bayer v. Monroe Cty. Children & Youth Servs., 577 F.3d 186, 191 (3d Cir. 2009) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The doctrine "applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact," Pearson, 555 U.S. at 231 (internal quotation marks omitted), and protects "all but the plainly incompetent or those who knowingly violate the law," Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164, 168 (3d Cir. 2016) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).
Detullio is protected by qualified immunity. Challenger concedes that there is no caselaw considering whether "refusing to provide the name and pedigree information of another is a violation of [the] statute." App. 22. This concession is fatal to Challenger's claim because the Supreme Court has explained that qualified immunity applies unless "'existing precedent . . . placed the statutory or constitutional question' confronted by the official 'beyond debate.'" Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (quoting al-Kidd, 563 U.S. at 741 (2011)). Challenger argues that she need not cite on-point precedent because "the plain language of the applicable statute provides no basis for charging an individual under the facts at issue." Batiz Br. 14. But even assuming that the plain language does not provide a basis for charging Challenger-meaning that Detullio committed a mistake of law-that reading of the statute is sensible enough that Detullio cannot be said to have been "plainly incompetent" or to have "knowingly violate[d] the law." Mammaro, 814 F.3d at 168.
Batiz next challenges the District Court's summary judgment on his malicious prosecution claim related to the theft charge. Batiz claims a jury could have found that Detullio lacked probable cause to believe he took the lifting bar "with purpose to deprive." N.J. Stat. Ann. 2C:20-3(a). As relevant here, "deprive" is defined as "to withhold or cause to be withheld property of another permanently . . . or with purpose to restore only upon payment of reward or other compensation." N.J. Stat. Ann. 2C:20-1.
We agree with the District Court that Detullio had probable cause to believe Batiz took the bar with purpose to deprive. The undisputed facts establish that: Pack Rat employees (not Batiz) informed Detullio that the lifting bar had been taken; Detullio was aware Batiz took the lifting bar in an effort to stop Pack Rat's repossession of the storage pod; and Batiz did not return the lifting bar until Detullio ordered him to do so. The District Court correctly explained that it was reasonable for Detullio "to believe that, even if Batiz intended to return the lifting bar upon Pack Rat's agreement to depart without repossessing his storage pod, that this was done 'with purpose to restore' the lifting bar to Pack Rat 'only upon payment of reward or other compensation,' compensation, in that case, being fulfilled by Pack Rat foregoing its perceived right to repossess the storage pod." App. 18-19.
Instead of disputing these conclusions, Batiz argues that the District Court "ignored those facts that called into question whether probable cause existed." Batiz Br. 17. Essentially, Batiz argues that the District Court overlooked evidence that he took the lifting bar only to prevent Pack Rat from taking what he considered his own property. But under New Jersey law, this "claim of right" argument is an affirmative defense. See State v. Ippolito, 671 A.2d 165, 168 (N.J. Super. Ct. App. Div. 1996) (citing N.J. Stat. Ann. 2C:20-2(c)(2)). And we have held that if an affirmative defense is "not clear cut" and "essentially an issue of fact," that defense "should not concern an arresting officer" when considering probable cause. Holman v. City of York, 564 F.3d 225, 231 (3d Cir. 2009); see also Sands v. McCormick, 502 F.3d 263, 269 (3d Cir. 2007) (police officers need not consider possible statute of limitations defenses when determining probable cause). Here, Officer Detullio could not have reasonably been expected to resolve this complicated argument and its attendant factual predicates at the scene. See Holman, 564 F.3d at 231. Therefore, Detullio had probable cause to arrest Batiz, which dooms this malicious prosecution claim.
Batiz also appeals the District Court's directed verdict on his malicious prosecution claim related to the hindering and disorderly conduct charges. To state a claim for malicious prosecution, a plaintiff must show, among other things, that "the defendant initiated the proceeding without probable cause" and that "the plaintiff suffered deprivation of liberty." Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007). When the arrest is made on multiple charges, "probable cause on one charge does not foreclose a malicious prosecution cause of action against a defendant for having brought criminal charges involving different elements." Id. at 83 (citations omitted). In such cases, however, the plaintiff must show that "the additional charges for which there might not have been probable cause . . . resulted in additional restrictions on his liberty beyond those attributable to the prosecution on the [] charges for which there was probable cause." Id. at 86.
Batiz was charged with theft, obstruction, hindering, and disorderly conduct. He concedes that probable cause existed as to the obstruction charge, and we explained herein why probable cause existed on the theft charge. Therefore, Batiz must show that the hindering and disorderly conduct charges-for which the District Court found a factual dispute with respect to probable cause-caused an additional deprivation of liberty.
Batiz alleges that absent these purportedly improper charges, the municipal court judge would have charged him on a summons rather than a warrant-meaning that he would not have been held in jail after being charged. He cites to the New Jersey Court Rules, which provide that a summons, rather than a warrant, should be issued unless the defendant "cannot be satisfactorily identified" or "there is reason to believe that the defendant will not appear in response to a summons." N.J. Ct. R. 7:2-2(b)(5), (6). Applying these rules to his case, Batiz claims that Detullio's exaggerations caused the municipal court judge to falsely believe that Batiz could not be satisfactorily identified or would not appear on a summons.
Batiz cannot carry his burden to prove this claim. As the District Court noted, "[t]here was no evidence presented of any kind" to substantiate Batiz's claim that the municipal court judge would have issued a summons without the allegedly infirm charges. App. 192. Batiz did not offer any "expert testimony [] concerning the practices and procedures in municipal court." App. 192. And any direct evidence from the municipal court judge was not discoverable. See United States v. Morgan, 313 U.S. 409, 422 (1941) (explaining that judges are not subject to examination at trial). Because any verdict in Batiz's favor would have been based on pure speculation by the jury as to the decision making process of the municipal [*11] judge, the District Court properly granted a directed verdict. See Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 75 (3d Cir. 1996) ("[W]hen the matter remains one of pure speculation or conjecture, . . . it becomes the duty of the court to direct a verdict for the defendant." (citations omitted)).
For the reasons stated, we will affirm the judgment of the District Court.



February 3, 2017


Yesterday, Sgt. Steven Floyd of the Delaware Department of Corrections gave his life in the service of the citizens of Delaware.  With his last breaths of life, he warned other officers responding to his call for help that the prisoners holding him hostage had set a trap and that they should back off and await reinforcements.  A hero, whose family deserves some thoughts and prayer today.  To all of you who hold the Thin Gray Line – Thank you.


Had a situation the other night that arises from time to time, and was hoping you could give me your opinion.  Responded to a meet complainant and was met by a 50-something year old woman who wants to turn in a gun because her father is older, and sick, and has talked about ending it all.  The gun is hers, but she wanted it out of the house.  We took the gun as property for safe keeping, and informed her that our Department policy is that she will need to get a court order if she wants it back.  She comes in like two days later demanding the gun back, claiming I never told her about obtaining the court order.  My question is this – Can we actually require someone to get a court order to get their gun back?  Doesn't that violate their 2nd Amendment rights?

Tony Dorset



My first reaction was that it sure sounds like a 2nd Amendment violation to me.  Turns out, you did in fact Stump the Chump, as I was, let's not say "wrong," but rather, misinformed.  There is a single case in the Third Circuit which stands for the proposition that a Police Department (or a County for that matter) may require a person to petition the court for return of a weapon.

Long story, short-  requiring a citizen to obtain a court order for the return of property under the circumstances you described is lawful. Must be the policy for everyone, and the Chief or other personnel can't have discretion to require some folks to petition, and others, not.

Long story, long - the case of Welsch v Upper Darby stands for the proposition that a municipality may (doesn't have to, but it may) require a citizen to petition a court for return of their property pursuant to Pa Rule of Criminal Procedure 588.  Yes, I know it is a criminal rule, but this case points out that it applies to anyone who is "aggrieved" by the seizure. 

A couple of notes of caution:

-  The Department's policy allowed the Chief to decide whether someone had to go petition a court or not, and that was found to be UNCONSTITUTIONAL.  Requiring the petition was fine.  Allowing the Chief to override that, was not.

-  This case won't give any protection if we illegally seized the weapon/property in the first place.  This case is limited to a case where the officer received valid consent to seize the weapon.  If we went in to a disturbance house, hypothetically, saw a gun in plain view, and took it (absent domestic violence, suicide threat, etc), then we could still land up in federal court for the initial seizure.


Chris "The Chump" Boyle 

 United States v. Bagley, 2017 U.S. App. LEXIS 1596  (3rd Circuit January 30, 3017)

HARDIMAN, Circuit Judge.

William Bagley appeals his judgment of conviction for counterfeiting Federal Reserve notes, claiming that evidence admitted against him was obtained pursuant to a defective search warrant. Because we conclude that the warrant was not defective, we will affirm.



In May 2013, the United States Secret Service began an investigation into the passing of counterfeit $100 Federal Reserve notes in Pennsylvania. After a confidential informant and two cooperating suspects implicated Bagley in the scheme, Magistrate Judge Eddy issued a search warrant for the apartment he occupied with Sherita Howard. The subsequent search of Howard's apartment turned up evidence of counterfeiting, including counterfeit bus passes and associated printing equipment. Bagley was indicted for counterfeiting and conspiracy to counterfeit and pass fraudulent Federal Reserve notes, in violation of 18 U.S.C. § 371, §§ 471-72.

Prior to trial, Bagley moved to suppress the evidence seized from the apartment, arguing the warrant did not particularly describe the place to be searched. The warrant referenced an "Apt #2" on the "second floor," but the apartment searched was actually on the third floor. Bagley Supp. App. 115; Gov't Supp. App. 44. Accordingly, Bagley contended that his apartment was number 3, not 2. The District Court disagreed and denied the motion to suppress, finding that the warrant described the apartment with sufficient particularity. Alternatively, the Court held that the good faith exception applied to deny suppression of the evidence.

After his motion to suppress was denied, Bagley entered a conditional plea of guilty on the counterfeiting and conspiracy charges, preserving the suppression issue. The District Court sentenced Bagley to 41 months' imprisonment on each charge, to be served concurrently, along with $14,300 in restitution and assessment fees. Bagley timely appealed on the suppression [*3]  issue alone.



1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

The Fourth Amendment requires that warrants "particularly describ[e] the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Bagley asserts that the warrant did not describe his apartment with sufficient particularity because it misstated the number and floor of his residence. We disagree.

Regarding the residence number, the District Court found that the apartment under investigation was Apartment #2, not #3 as Bagley contends. The District Court's finding was supported by both information on Howard's driver's license and uncontroverted testimony from Special Agent Mark Kernan that there are only two mailboxes outside the relevant address. Bagley provided no contrary evidence, so the District Court's conclusion was not clearly erroneous. See United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).

Regarding the floor, Bagley argues that the phrase "second floor" in the warrant was inaccurate in referencing a third-story apartment. App. 71. But the warrant also refers to the deli in the three-story building as being on the "ground floor," not the first floor. Id. Accordingly, investigating agents could have readily inferred that the second floor corresponded to the third story.2 These circumstances are unlike those found in the cases cited [*4]  by Bagley where the warrant described a residence other than the one searched. See, e.g., United States v. Bershchansky, 958 F. Supp. 2d 354, 381 (E.D.N.Y. 2013) (warrant naming Apartment #2 used to search an Apartment #1), aff'd 788 F.3d 102 (2d Cir. 2015); United States v. Trainor, 979 F. Supp. 933, 935 (D. Mass. 1997) (warrant naming street number 136 used to search number 138).


2 The warrant was also executed by Agent Kernan, who knew from prior surveillance that the relevant apartment was on the top floor. It was therefore unlikely that any ambiguity in the warrant description would have confused officers. See United States v. Clement, 747 F.2d 460, 461 (8th Cir. 1984) (declining to invalidate search based on partial error in warrant's description of residence where officers' familiarity with residence ensured "no probability of a mistaken search").

In addition, we agree with the District Court that even if the warrant were deficient, the good faith exception to the exclusionary rule would apply. "[T]he purpose of the exclusionary rule—to deter police misconduct—[is not] furthered by suppressing evidence . . . 'when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.'" United States v. Tracey, 597 F.3d 140, 150 (3d Cir. 2010) (quoting United States v. Leon, 468 U.S. 897, 919-20, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)). Although we will not apply the good faith exception when a warrant is "so facially deficient that it failed to particularize the place to be searched," Tracey, 597 F.3d at 151, any ambiguity in this warrant does not rise to that level.

We will affirm the District Court's judgment for the reasons stated

COMMENT:  Ruh-Roh Rastro, I have some bad news – There is no such good faith exception under state law.  Also, if you aren't old enough to know what "Ruh-Roh Rastro" means, I am not sure we can continue to be friends. 

As recently as December 16, 2016, the Pennsylvania Supreme Court reiterated that the privacy concerns of the Pennsylvania Constitution are distinguishable from the deterrence based concerns of the US Constitution's 4th Amendment.  (Chump to English translation? – THERE IS NO GOOD FAITH EXCEPTION UNDER PA LAW).  Now, not for nuthin', but know how we could have avoided all of this? - A bit more specificity in describing the property to be searched. That's how.  Still, let’s give credit where it is due, and recognize a nice piece of police work to our federal friends. 

The Chump 





February 10, 2017


Chump: Not for nuthin', but why didn't the Markim Summers case make the cut? I thought you would have found it a "remarkable piece of police work" worth writing about. Forget about us back in the hood? Can Philly get a little love?
-Katharine Hepburn

Dearest Katherine – It will likely surprise you that I sometimes get accused of sharing too many Philadelphia cases. Still, I know one of the Philly Solicitors on this case, and he's an Ace (As Gunny Highway said in Heartbreak Ridge: "That doesn't mean we're gonna' be takin' warm showers together 'til the wee hours of the morning…"), so I am happy to cut it down to the facts and the holding as our Stump the Chump/Case of the Week. Please take note of how Officer O'Brien testified about the use of deadly force in his deposition. While he may have come to that on his own, I am betting my friend the Solicitor put the time in, in prepping everyone for their depositions. Nice job all around, Kevin:

Summers v. Ramsey, 2016 U.S. Dist. LEXIS 171177 (E.D.Pa. December 16, 2016)

On June 29, 2013, while high on PCP and naked, Plaintiff Markim Summers jumped onto a police patrol car and used his bare fists to pummel the glass windshield…. Summers struck the windshield twice. He then attempted to strike the windshield a third time. On his third attempt, Officer Thomas O'Brien, then seated in the driver's seat, discharged his firearm. Officer O'Brien fired his gun upwards through the windshield. Two bullets entered Plaintiff's midsection, one to his torso and the other to an arm.


1 PCP is short for phencyclidine, "a controlled substance which causes hallucinations and serious psychological disturbances." See Guilbeau v. W.W. Henry Co., 85 F.3d 1149, 1164 n.41 (5th Cir. 1996) (citing R. Sloane, The Sloane Dorland Annotated Medical Legal Dictionary 585 (1987)). Due to the violent, bizarre, unpredictable behaviors associated with PCP use, PCP-intoxicated persons are at increased risk of inadvertent injury, self-injurious behavior and death. Moreover, there is a significant risk that incidents between a PCP-intoxicated person and police officers will result in injury or death to the police officer due to the unpredictable behavior associated with PCP intoxication. … In the Philadelphia area, PCP is commonly impregnated in a marijuana or tobacco cigarette. (Id.) The cigarette is dipped or immersed into the PCP liquid. This results in the PCP-soaked cigarette which is referred to as "wet." (Id.)

…In an attempt to hold as many Defendants as possible responsible for his injuries, Plaintiff alleged in his Complaint sixteen causes of action. …


During the early morning hours of July 29, 2013, around 5:14 a.m., while Officer Daniel Levitt was patrolling alone in a marked patrol car, he saw a naked, African American male in a Rite Aid parking lot who was visibly agitated and throwing either a newspaper dispenser or trashcan…. That individual was later identified as Plaintiff. Plaintiff Summers has described himself as being six foot-one inch tall and weighing approximately one hundred and seventy pounds, with the ability to lift one hundred pounds or so. … Officer Levitt called for backup, requesting a taser trained officer, based on his previous experiences with people appearing to be under the influence of PCP.…

While Plaintiff was on the ground, Officer Levitt remained in his car and made a call over his police radio that a male had stopped a bus… Eventually, Plaintiff stood up and walked towards the northeast corner of 22nd Street and Westmoreland Streets. … Officer Levitt testified that Plaintiff then picked up two rocks and threw them onto the ground. …Next, Plaintiff walked east on Westmoreland Street…

Once Plaintiff began walking Officer Levitt attempted to block him from moving further because he feared that Plaintiff would hurt himself or others. To secure the road, Officer Levitt passed Plaintiff on the left and made a wide, right U-turn down 21st Street… At this point, Officer Thomas O'Brien arrived at the scene and proceeded down Westmoreland Street. …
Next, Plaintiff walked towards Officer O'Brien and Officer Levitt's cars. … Plaintiff was sweating profusely and gesturing up towards the sky. He appeared to be speaking to someone. … He also made rapid, jerking-type movements and appeared to be in a drug-induced state. …Officer O'Brien described Plaintiff as appearing to be in his own world. …Based on his experience, Officer O'Brien believed Plaintiff was on PCP…

Subsequently, Plaintiff approached Officer Levitt's car and in a "gingerly slow movement," tried to reach into the driver side window "like a baby." … Officer Levitt then immediately placed his car in reverse and rolled up his window. … In response, Plaintiff turned his body toward Officer O'Brien's passenger window. At this point, his prior childish nature suddenly turned aggressive. … Officer Williams observed Plaintiff yelling something inaudible moments before he made contact with Officer O'Brien's vehicle. …Thereafter, Plaintiff jumped onto Officer O'Brien's patrol car. (Id.)

Next Plaintiff, using his bare fist, punched the windshield of Officer O'Brien's car. The force shook the entire car. … The first punch was close to Officer O'Brien's driver side window and damaged the windshield. … At this time, Officer O'Brien said that he reached toward his steering column to put his car into reverse. … Before Officer O'Brien could do so, Plaintiff threw a second punch at the windshield causing it to explode glass dust into Officer O'Brien's face. (Id.) The second punch made a hole in the windshield. … At this point, Officer O'Brien had glass powder on his face and a man standing over him, threatening his safety. …Plaintiff did not listen to any of the officer's requests to stop punching the patrol car.

Thereafter, Plaintiff readied his swing a third time. … Officer O'Brien, fearing for his life and safety, removed his gun from his holster and fired two shots upward aiming in between Plaintiff's belly button and collar bone area. … Officer O'Brien said that he fired the shots because he was focused on his "survival. [Plaintiff was] coming in [his] windshield and [Plaintiff was] not going to have a chance to do to [him] what [Plaintiff] did to [his] windshield." …Officer O'Brien, in his deposition, described his thoughts before the shooting as follows:

Q: Intention wise, when you are shooting what is the intention?

A: To stop the threat.

Q: Shoot to kill or shoot to get him off the car or shoot for some other reason?

A: I'm shooting to stop the threat. That is where we're instructed to shoot, in the center mass. My intention is not to kill anybody.

* * *

Q: You told me that there was not at that point an option to back up. Am I correct at that point?

A: I don't know what you mean by that statement. I mean, you're talking about a hair of a millisecond here.

Q: I am. You're right. Any thoughts --

A: I made a conscious decision at that moment based upon my level of fear.

Q: So this is going to sound like a dumb question, but I guess I have to ask. What was the level of fear? What are you thinking?

A: I'm thinking that the damage that he did to that windshield, I mean, we're talking fear of my life at this point...

Next, one officer called for rescue. Medic 4B arrived and put Plaintiff on a stretcher to transport him to Temple University Hospital. .. At the hospital, he was treated for two gunshot wounds—one to his right chest and one that grazed his elbow. Officer Williams followed the vehicle to the hospital because Plaintiff was now considered to be in custody. (Id.)…


For all of the foregoing reasons, the Defendants' Motion for Summary Judgment (Doc. No. 32) will be granted in its entirety.