Lamont v. State

• Decision Date: 04 March 2011
• Docket Number: No. 09–1845.,09–1845.
• Citation: 637 F.3d 177
• Parties: Angelika LAMONT, Administrator Ad Prosequendum of the Estate of Eric J. Quick, Appellantv.State of NEW JERSEY; New Jersey State Police Department; Mark Manzo; Christopher Modarelli; Keith Moyer, John Does, A–Z, fictitious names, police officers, supervisors, trainers, instructors, employees, agents and/or servants of the State of New Jersey and/or New Jersey State Police Department, jointly, severally, individually and/or in the alternative.
• Court: U.S. Court of Appeals — Third Circuit

637 F.3d 177

Angelika LAMONT, Administrator Ad Prosequendum of the Estate of Eric J. Quick, Appellant
v.
State of NEW JERSEY; New Jersey State Police Department; Mark Manzo; Christopher Modarelli; Keith Moyer, John Does, A–Z, fictitious names, police officers, supervisors, trainers, instructors, employees, agents and/or servants of the State of New Jersey and/or New Jersey State Police Department, jointly, severally, individually and/or in the alternative.

No. 09–1845.

United States Court of Appeals, Third Circuit.

Argued Jan. 25, 2011.Filed: March 4, 2011.

[637 F.3d 179]

Andrew M. Smith (argued), Amanda J. Houpt, Smith, Marcino & Bowman, Willow Grove, PA, for Appellant.John C. Connell (argued), John P. Kahn, Archer & Greiner, Haddonfield, NJ, for Appellees.Before: McKEE, Chief Judge, and SMITH, Circuit Judges and STEARNS, District Judge.^*

OPINION SMITH, Circuit Judge.

This civil-rights case was filed after law enforcement officers shot and killed a suspected car thief during a standoff. Immediately prior to the shooting, the suspect had been standing with his right hand concealed in his waistband and appeared to be clutching an object. After being ordered both to show his hands and to freeze, the suspect suddenly pulled his right hand out of his waistband—not as if he were surrendering—but as though he were drawing a gun. The sudden movement prompted the officers to open fire, leading to the suspect's death. The officers fired their guns for 10 solid seconds, shooting a total of 39 rounds. Eighteen bullets hit the suspect, 11 of them from behind. It turned out that the suspect was not clutching a weapon; he was holding a crack pipe.

The administrator of the suspect's estate filed this suit under 42 U.S.C. § 1983, asserting that the officers' use of force was unreasonable and violated the Fourth Amendment. In due course, the District Court granted a defense motion for summary judgment, holding that the officers acted reasonably as a matter of law. To the extent that the District Court held that the suspect's abrupt, threatening movement justified the officers' initial use of deadly force, we agree. However, we conclude that a jury should decide whether the force became unreasonable some time thereafter— i.e., whether the officers should have ceased firing their weapons before they did. Accordingly, we will affirm in part and reverse in part.

I ¹

The events surrounding the deadly shooting took place shortly after 10:00 p.m. on July 21, 2003. New Jersey State Troopers Christopher Modarelli, Mark Manzo, Keith Moyer, Joseph Carson, and Thomas Hollywood were at the Bellmawr State Police Station when the radio dispatcher reported that local police were in

[637 F.3d 180]

pursuit of a stolen vehicle on Interstate 295 near Route 30. The location is within the Bellmawr station's jurisdiction, so the troopers drove out to the scene. When they arrived, they were advised that the suspect, a white male wearing a white t-shirt, dark sweat pants, and no shoes, had abandoned the vehicle and fled into the woods bordering the interstate. They were also told that local police officer Robert Swanson had gone after him. Modarelli, Moyer, Manzo, and Carson went into the woods to provide backup for Swanson. Hollywood stayed behind.

The woods were dark and dense. The officers needed their flashlights just to see in front of them. At one point, Modarelli stumbled upon the suspect who was hiding under some brush. Modarelli ordered him to show his hands and surrender, but the suspect disregarded the commands and ran away. Modarelli, now joined by Moyer, followed after him. During the chase, the suspect got caught in a thicket. Trapped, he turned and faced Modarelli and Moyer, who drew their guns. Modarelli and Moyer shouted, “Don't make me shoot you,” and (inconsistently) ordered the suspect to show his hands and to freeze. Swanson, Carson, and Manzo heard the commotion and joined Modarelli and Moyer. Manzo unholstered his gun.

The officers were standing between five and eight feet from the suspect, and had their flashlights trained on him. They repeatedly ordered the suspect to show his hands and to freeze. Modarelli, Moyer, and Manzo had their guns drawn and pointed at the suspect. Although facing the officers, the suspect's body was not square. He was standing at an angle, with his right shoulder forward. His left hand was positioned above his forehead (apparently to shield his eyes from the light), while his right hand was tucked into the left side of his waistband and appeared to be clutching an object.

Suddenly, the suspect pulled his right hand out of his waistband, not as if he were surrendering, but quickly and as if he were drawing a pistol. As the suspect made the sudden movement, Modarelli, Moyer, and Manzo opened fire. As the first shots were fired, Carson's flashlight was hit by a projectile (later determined to be a ricochet from one of the troopers' shots), and he fell to the ground. Swanson went to his aid, and after determining that he was unwounded, helped him up. Meanwhile, Modarelli, Moyer, and Manzo continued firing at the suspect. At some point, the suspect turned away from the officers, yet they kept firing, shooting him in the legs and buttocks. The suspect finally fell to the ground, landing on his stomach and facing away from the officers. Swanson approached the suspect and determined that he had no pulse. He was later pronounced dead.

In all, Modarelli, Moyer, and Manzo fired continuously for ten seconds, shooting a total of 39 rounds. Modarelli and Moyer each fired 14 shots (thus emptying their magazines), and Manzo fired 11 times. Eighteen bullets struck the suspect, and 11 hit him from behind. A medical examiner identified two bullets that were likely fatal, both of which struck the suspect in the chest. The examiner could not, however, determine when during the course of the shooting the fatal bullets hit the suspect.

The suspect was later determined to be Eric Quick. It turned out that Quick did not have a gun in his right hand; he held only a crack pipe. The pipe was shaped like a cigarette—two inches long, cylindrical, and clear. A toxicology report suggests that Quick was under the influence of cocaine and heroin at the time of the incident.

[637 F.3d 181]

II

The plaintiff is the administrator ad prosequendum of Quick's estate. On April 14, 2004, she filed this lawsuit in state court. In relevant part, the complaint asserts Fourth Amendment excessive-force claims against Modarelli, Moyer, and Manzo. The troopers removed the case to the United States District Court for the District of New Jersey on May 27, 2004. In 2005, the case was stayed pending the outcome of a grand jury investigation into the troopers' conduct. The grand jury ultimately declined to indict the troopers, and the case was resumed. On May 22, 2008, the troopers moved for summary judgment, asserting the defense of qualified immunity.

The District Court granted the motion on February 25, 2009. The Court first rejected the plaintiff's argument that the use of force was necessarily unreasonable because the troopers' decision to pursue Quick into the woods—rather than set up a perimeter and use a K–9 to flush him out—was unreasonable. This argument lacks merit, the Court explained, because “the act that presumably justified the use of deadly force was not the [troopers]', but rather Quick's. The troopers did not resort to deadly force until Quick suddenly ripped his right hand from his waistband.” JA 15. The Court next concluded that Quick's sudden, threatening movement justified the troopers' initial use of deadly force. Finally, the Court rejected the plaintiff's argument that there is a triable issue on whether the use of force, even if initially justified, became unreasonable as the events transpired. The Court opined, “When Quick made a sudden movement and ripped his right hand from his left waistband, the troopers, believing Quick had a gun, all fired at the same time and stopped once Quick was no longer a threat.” Id. at 22. The Court acknowledged that “the number of bullets fired appears ‘excessive’ in laymen's terms,” but stressed that “[t]here is no evidence that any of the troopers fired mindlessly or paused and then resumed firing after Quick was on the ground facedown.” Id. at 22–23. The Court explained further that, although “eleven bullets struck Quick in the posterior of his body[,]” this “does not, standing alone, show that” the troopers continued firing after “Quick was no longer a threat.” Id. at 22 n. 14.

The plaintiff appealed.

III

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. This Court has jurisdiction under 28 U.S.C. § 1291. Our review of a district court's grant of summary judgment is plenary. Burns v. Pa. Dep't of Corr., 544 F.3d 279, 285 (3d Cir.2008).

IV

Under Federal Rule of Civil Procedure 56, summary judgment is proper “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.” Facts that could affect the outcome are “material facts,” and a dispute about a material fact is “genuine” if the evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Because “the victim of deadly force is unable to testify,” Abraham v. Raso, 183 F.3d 279, 294 (3d Cir.1999), we have recognized that a court ruling on summary judgment in a deadly-force case “should be cautious ... to ‘ensure that the officer[s

[637 F.3d 182]

are] not taking advantage of the fact that the witness most likely to contradict [their] story—the person shot dead—is unable to testify,’ ” id. (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994)). Thus, a court should avoid simply accepting “ ‘what may be a selfserving account by...