Forbes v. Township of Lower Merion

• Decision Date: 11 December 2002
• Docket Number: No. 01-3942.,01-3942.
• Citation: 313 F.3d 144
• Parties: 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.
• Court: U.S. Court of Appeals — Third Circuit

Page 144

313 F.3d 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, Third Circuit.

Argued September 12, 2002.

Decided December 11, 2002.

COPYRIGHT MATERIAL OMITTED

Lloyd G. Parry (Argued), Davis, Parry & Tyler, Philadelphia, PA, for Appellants.

Sheryl S. Chernoff, Susan F. Burt (Argued), Burt-Collins & Chernoff, Merion Station, PA, for Appellees.

Before ALITO and FUENTES, Circuit Judges, and OBERDORFER,^* District Judge.

OPINION OF THE COURT

ALITO, Circuit Judge.

This action under 42 U.S.C. § 1983 arises out of a police 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 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. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), we will henceforth require the District Courts to specify those material 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 security guard and stopped at an A-Plus convenience store in Bryn Mawr, Pennsylvania. Shortly thereafter, the clerk telephoned 911, reporting that Forbes 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 commands and that Forbes then extended his middle finger and bolted from the car brandishing a heavy wooden staff. Here the parties' accounts diverge. The officers claim that Forbes charged "right at" police and motioned to attack 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 triangulated towards the direction in which Salkowski also ran. Salkowski fired one shot, felling Forbes.

After Forbes was shot, he lay on the ground, "mumbl[ing]" or "moan[ing]," still clutching the staff, with one hand obscured. McGowan then kicked the staff aside and ordered Forbes to show his hands. Whether Forbes suffered from delirium or fading consciousness or simply intended 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 "motionless" 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 officers 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. 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 district 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, 69 S.Ct. 1221, 93 L.Ed. 1528 (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 "[t]he entitlement is an immunity from suit rather than a mere defense to liability[] and ... is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). However, this right to interlocutory review is limited "to the extent that [a claim of qualified immunity] turns on an issue of law." Id. at 530, 105 S.Ct. 2806. For instance, we may "review whether the set of facts identified by the district court is sufficient to establish a violation of a clearly established constitutional right," but we may not "consider 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 conclusion of the case. See Johnson, 515 U.S. at 313-16, 115 S.Ct. 2151.

Qualified immunity insulates from civil liability government officials performing discretionary functions insofar as "their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In assessing a claim of 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 two components. To overcome the defense of qualified immunity, (1) the facts, "[t]aken 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, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), and (2) "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640, 107 S.Ct. 3034.

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 deprivation of constitutional rights or other injury." Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). The doctrine aims to exclude "the plainly incompetent" and "those who knowingly violate the law" while accommodating reasonable "mistaken judgments." Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (citation and internal quotation marks omitted). If an official could have reasonably 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 identifying 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 jurisdiction. If the District Court had specified the material facts that, in its view, are or are not subject to genuine dispute, 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' ...