Bennett v. Murphy, Civil Action No. 94-214.

• Decision Date: 10 August 2000
• Docket Number: Civil Action No. 94-214.
• Citation: 127 F.Supp.2d 689
• Parties: Sally BENNETT, Administratrix of the Estate of David Bennett, Plaintiff, v. Francis F. MURPHY, individually and in his capacity as Pennsylvania State Trooper, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

127 F.Supp.2d 689

Sally BENNETT, Administratrix of the Estate of David Bennett, Plaintiff, v. Francis F. MURPHY, individually and in his capacity as Pennsylvania State Trooper, Defendant.

Civil Action No. 94-214.

United States District Court, W.D. Pennsylvania.

August 10, 2000.

Victor H. Pribanic, Vincent A. Coppola, Pribanic & Pribanic, White Oak, for Plaintiff.

Kemal A. Mericli, Office of the Attorney General, Pittsburgh, for Defendant.

MEMORANDUM OPINION

CINDRICH, District Judge.

By memorandum order dated January 7, 2000, the court granted plaintiff's ("Bennett") motion for new trial. Defendant ("Murphy") thereupon sought reconsideration, and moved separately for summary judgment. In these submissions Murphy formally raises an issue that the court informally and unfavorably addressed in the January 7, 2000 decision, namely qualified immunity. Because of the right Murphy asserts, he is entitled to a decision directly addressing the matter. Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759, 779 n. 19 (1998) (immediate interlocutory appeal available for denial of immunity).

A. Murphy's Invocation of Qualified Immunity

As is well established, qualified immunity is a doctrine that insulates the holder from trial, not just from liability. Since the court granted Bennett's motion for new trial, Murphy seeks protection from the consequences of that decision.

At the outset, we repeat that there is no basis on which to find a waiver of qualified immunity. The new trial Murphy faces, with new burdens and potential for liability, is precisely the sort of ordeal that qualified immunity covers. Unless Bennett can show some current knowing and voluntary waiver of the right to qualified immunity, which she has not done, we believe Murphy would have that right any time he faced a lawsuit based on his conduct as a law enforcement officer. The decision that Murphy should face trial again thus properly triggered his invocation of that right.

B. Was the Use of Deadly Force Indisputably Reasonable as a Matter of Law?

Murphy's argument on the merits of his defense is straightforward. He casts the facts in a way he claims is most favorable to Bennett, using testimony from Bennett's own witnesses. He then mines precedent for examples of what he calls "highly comparable cases" of the use of deadly force where the court approved the defense of qualified immunity, and ended the case. See, e.g., Montoute v. Carr, 114 F.3d 181 (11th Cir.1997); Roy v. Inhabitants of City of Lewiston, 42 F.3d 691 (1st Cir. 1994); Medeiros v. Town of Dracut, 21 F.Supp.2d 82 (D.Mass.1998).¹ He concludes that under these circumstances, "[i]t cannot be said that no reasonably competent police officer would have shot David Bennett under the facts as Mrs. Bennett has presented them at the first trial." Motion for Summary Judgment on Grounds of Qualified Immunity as a Matter of Law, Doc. No. 118 at 4. Since a reasonable police officer would have shot David Bennett, Murphy claims that he is immune.

We make three findings that conclusively disfavor his position. The first is that we disagree that Murphy has cast the facts in the light most favorable to Bennett. In our view, the most favorable facts, ignoring evidentiary disputes, can be summarized as follows. The state police were called to the courtyard of a group of apartment buildings on the evening of January 4, 1994 to confront a man, David Bennett, who they soon learned was distraught at being unable to see his girlfriend. He was armed with a single shot shotgun that he held vertically in front of him, with the barrel pointed up at his head, and the stock facing down. He was "very deliberate in holding [the gun] toward himself or in the air," and did not point the gun at anyone, including state troopers. Doc. No. 122, Simmers Testimony, Transcript at 141-42. He said that he wanted to kill himself. Id. at 203, Darlene Chump Testimony. As the troopers took up positions surrounding him in the open area between the apartment buildings, he became agitated and began moving toward a group of them, but stopped for perhaps four seconds before he was shot. Id. at 277, Ciciretti Testimony. Murphy was positioned 80 yards behind Bennett when he fired. Almost an hour passed between the time the state troopers first arrived on the scene, and the time Bennett was shot.

Bennett admittedly was angry and defiant in the face of a group of determined, armed state troopers. But to take the version of the facts most favorable to Bennett, is it indisputably reasonable as a matter of law for a law enforcement officer 80 yards away; at night; under conditions of poor visibility; to shoot someone who is standing still; facing away; with a gun pointed at his own head, threatening suicide; surrounded by heavily armed fellow officers in close proximity; out of fear of a threat to other troopers positioned at one third the distance; who were in a much better position to see the decedent; and who did not shoot; after almost an hour had passed with no offensive action by the state police? This court's answer is no; first, because there is no definitive standard of reasonableness against which to measure the officer's conduct; second, because that measurement should be more properly in the hands of a jury; and last, because there are disputed issues of material facts.

The second factor is the position of the United States Court of Appeals for the Third Circuit, which recently and closely examined a case involving the use of deadly force. The court of appeals reversed the same type of finding of objective reasonableness that Murphy asks us to make here. Because of its applicability, the decision is worth quoting at length.

Combining the standards announced in Garner and Graham, our inquiry for the use of deadly force is as follows: Giving due regard to the pressures faced by the police, was it objectively reasonable for the officer to believe, in light of the totality of the circumstances, that deadly force was necessary to prevent the suspect's escape, and that the suspect posed a significant threat of death or serious physical injury to the officer or others? In determining the reasonableness of all degrees of force, the Supreme Court has said that the factors to consider include the "severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. at 396, 109 S.Ct. at 1872.

Because we are applying this standard on a summary judgment motion, we must address to what extent questions of "reasonableness" can be resolved on summary judgment. Reasonableness under the Fourth Amendment resembles tort law in its attention to how a specific, concrete circumstance should affect an officer's judgment. This sensitivity to context suggests that regardless of whether objective reasonableness invokes a different and heightened standard from negligence, reasonableness under the Fourth Amendment should frequently remain a question for the jury. To put the matter more directly, since we lack a clearly defined rule for declaring when conduct is unreasonable in a specific context, we rely on the consensus required by a jury decision to help ensure that the ultimate legal judgment of "reasonableness" is itself reasonable and widely shared.

Abraham v. Raso, 183 F.3d 279, 289-90 (3d Cir.1999) (emphasis added). The court of appeals went on to find it appropriate to examine the "totality of the circumstances" in deadly force cases. "`Totality' is an encompassing word. It implies that reasonableness should be sensitive to all of the factors bearing on the officer's use of force." Id. at 291. In a similar vein, the court approvingly cited Ninth Circuit precedent about caution in considering testimony on summary judgment about which credibility judgments must be made. The court may not simply accept what may be a selfserving account by the officer. It must also look at circumstantial evidence that, if believed, would tend to discredit the police officer's story, and consider whether this evidence could convince a rational fact finder that the officer acted unreasonably.

Id. at 294 (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994)). As we found in our January 2000 decision, there is considerable evidence on which to question Murphy's credibility, and which might have led to other admissible evidence. All of these conclusions counsel against finding that Murphy's actions were reasonable as a matter of law on summary judgment, regardless of the number and strength of opinions coming from other courts of appeal.

Third, one of the angles from which Murphy approaches this problem is by an argument that his testimony is superfluous. He states,

if Mr. Bennett's actions, as described by his own witnesses exclusively, provide sufficient grounds for qualified immunity it doesn't matter what Murphy saw, who Murphy is, what makes him tick or whether he tells the truth. The police shooter could be anybody and there is not liability.

Motion for Reconsideration, Doc. No. 114, at 4. We think this position is incorrect. The Supreme Court in Graham v. Connor stated that

[t]he "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight....

the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivations.

490 U.S. at 396-97, 109 S.Ct. 1865 (emphasis added); Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir.1997) ("Supreme Court has emphasized that the inquiry is whether a reasonable officer could have believed that his or her conduct was lawful, in light of the clearly established law and the information in the officer's possession") (emphasis...