361 F.3d 772 (3rd Cir. 2004), 02-4188, Kopec v. Tate

Docket Nº:02-4188.
Citation:361 F.3d 772
Party Name:Michael KOPEC, Appellant v. Tyrone TATE, Officer; Township of Whitemarsh
Case Date:March 17, 2004
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 772

361 F.3d 772 (3rd Cir. 2004)

Michael KOPEC, Appellant


Tyrone TATE, Officer; Township of Whitemarsh

No. 02-4188.

United States Court of Appeals, Third Circuit

March 17, 2004

Argued Nov. 6, 2003.

Page 773

John J. Auritt (argued), Media, PA, for Appellant.

Joseph Santarone, Walter F. Kawalec, III (argued), Marshall, Dennehey, Warner, Coleman & Goggin, Cherry Hill, NJ, for Appellee Officer Tyrone Tate.

Before: McKEE, SMITH, and GREENBERG, Circuit Judges.


GREENBERG, Circuit Judge.

This matter comes on before this court on an appeal by plaintiff Michael Kopec ("Kopec") from the district court's order entered on October 22, 2002, granting summary judgment in favor of defendant Officer Tyrone Tate ("Officer Tate") in this action principally brought under 42 U.S.C. § 1983 ("section 1983"). For the reasons stated herein, we hold, contrary to the district court, that Officer Tate is not entitled to qualified immunity on Kopec's excessive force claim and therefore we will reverse the district court's order granting

Page 774

summary judgment in his favor on that basis.


In the evening of February 2, 2000, Kopec and his girlfriend, Pamela Smith (whom Kopec later married), trespassed onto the frozen lake at the Sherry Lake Apartment Complex in Conshohocken (Whitemarsh Township), Montgomery County, Pennsylvania.1 The lake, which was fenced off, was located on the property where Pamela Smith (now Pamela Kopec) rented an apartment. To gain access to the lake Kopec hopped over the fence and his girlfriend squeezed through an opening in it. The two then proceeded to frolic on the ice.2 Officer Tate, who then arrived in response to an anonymous call, directed them to get off the lake, and the two complied.

Although Officer Tate did not intend to charge them with trespassing, he did seek to record their names, addresses, and phone numbers for his report and he advised Kopec that he needed this information for that purpose. Kopec nevertheless refused to provide this information, though Officer Tate repeatedly asked for it, and Kopec instructed his girlfriend not to do so either. Officer Tate became annoyed with Kopec and then arrested him for disorderly conduct, and handcuffed him behind his back.

Within about ten seconds of being handcuffed, Kopec began to lose feeling in his right hand and, as a consequence, asked Officer Tate to loosen the handcuffs, but Officer Tate did not do so. Kopec then asked if "this is what he does when people don't give him information." Officer Tate did not answer. A. 30.

Officer Tate took Kopec to his police car several feet away and left him alongside it as he went to interview Pamela Kopec, who was close by. As Officer Tate walked away, Kopec told him the pain was unbearable and begged him to loosen the handcuffs. Again, Officer Tate did not comply with Kopec's request. Kopec began to faint from the pain caused by the handcuffs and then fell to the ground. He asked Officer Tate to remove the handcuffs because he had lost feeling in his right hand. Officer Tate said "I will be there in a minute," and did not go to Kopec immediately. A. 31. Kopec asked him again either to loosen or remove the handcuffs while Kopec was groaning due to excruciating pain. Officer Tate heard Kopec, but took no steps to assist him. According to Kopec, it took Officer Tate about ten minutes from the time he had handcuffed Kopec finally to loosen the handcuffs.3 Kopec claims to have permanent nerve damage in his right wrist as a result of the handcuffing, for which a hand surgeon treated him for over one year.

Kopec concedes that he was trespassing in violation of 18 Pa. Cons.Stat. Ann. § 3503(b)(1)(iii) (West Supp.2003) and that Officer Tate lawfully was able to arrest and handcuff him. Nevertheless Kopec subsequently brought this action against Officer Tate, alleging that the officer's acts violated section 1983 and were tortious under Pennsylvania law.

On Officer Tate's motion the district court granted summary judgment in his

Page 775

favor on the basis that he had qualified immunity on claims Kopec asserted under section 1983 predicated on the First, Fourth and Fourteenth Amendments and that claims Kopec advanced under the Pennsylvania Tort Claims Act charging intentional, willful misconduct and intentional infliction of emotional distress were barred by the immunity provisions of that act in 42 Pa. Cons.Stat. Ann. §§ 8541 and 8545 (West 1998).4 Kopec appeals from the district court's order but only with respect to his Fourth Amendment claim.5


A. Jurisdiction

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367 in that the complaint alleged federal civil rights claims under 42 U.S.C. § 1983 and supplemental state law claims. Inasmuch as Kopec's appeal was timely we have jurisdiction pursuant to 28 U.S.C. § 1291.

B. Standard of Review

We exercise de novo review of the district court's grant of summary judgment. See Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). Summary judgment is proper when the evidence shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reviewing the record, we are required to view the inferences to be drawn from the underlying facts in the light most favorable to Kopec, as the party opposing the motion, and to take his allegations as true when supported by proper proofs whenever these allegations conflict with those of Officer Tate. See Meritcare, Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 223 (3d Cir. 1999).


A. Qualified Immunity on a Section 1983 Claim

42 U.S.C. § 1983 provides:

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....

Thus, section 1983 provides a remedy for deprivations of rights established elsewhere

Page 776

in the Constitution or federal laws. Estate of Smith v. Marasco, 318 F.3d 497, 505 (3d Cir. 2003); Kneipp, 95 F.3d at 1204.

Qualified immunity is intended to shield government officials performing discretionary functions, including police officers, "from liability from civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A defendant has the burden to establish that he is entitled to qualified immunity. See Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n. 15 (3d Cir. 2001).

The Supreme Court held in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), that a ruling on qualified immunity must be undertaken using a two-step inquiry. See id. at 200-01, 121 S.Ct. at 2155-56. First, the court must consider whether the facts alleged, taken in the light most favorable to the plaintiff, show that the officer's conduct violated a constitutional right. See id. at 201, 121 S.Ct. at 2156; S.G. ex rel. A.G. v. Sayreville Bd. of Educ., 333 F.3d 417, 420 (3d Cir. 2003) (When an individual defendant in a section 1983 action claims he is entitled to qualified immunity, "our first task is to assess whether the plaintiff's allegations are sufficient to establish the violation of a constitutional or statutory right at all.") (quoting Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000)). "If the plaintiff fails to make out a constitutional violation, the qualified immunity inquiry is at an end; the officer is entitled to immunity." Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002).

If, however, "a violation could be made out on a favorable view of the parties' submissions, the next sequential step is to ask whether the right was clearly established." Saucier, 533 U.S. at 201, 121 S.Ct. at 2156. "The relevant dispositive inquiry" in making this determination is "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. at 2156. If it would not have been clear to a reasonable officer what the law required under the facts alleged, then he is entitled to qualified immunity.

B. Excessive Force

Our first inquiry on Officer Tate's claim of qualified immunity is whether the facts Kopec asserts, taken in the light most favorable to him, show that Officer Tate violated Kopec's Fourth Amendment rights. "To state a claim for excessive force as an unreasonable seizure under the Fourth Amendment, a plaintiff must show that a 'seizure' occurred and that it was unreasonable." Estate of Smith, 318 F.3d at 515 (quoting Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999)). Here, Officer Tate does not assert that Kopec's arrest did not constitute a "seizure." Thus, the only issue on this inquiry is whether the force Officer Tate used to effect that seizure was reasonable.

The test of reasonableness under the Fourth Amendment is whether under the totality of the circumstances, "the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivations." Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). Thus, if a use of force is...

To continue reading