Carswell v. Borough of Homestead, 03-2290.

Citation381 F.3d 235
Decision Date20 August 2004
Docket NumberNo. 03-2290.,03-2290.
PartiesTonya L. CARSWELL, Administratrix of the Estate of Gilbert Carswell, deceased, on behalf of the Estate of Gilbert Carswell, deceased and Tonya L. Carswell, Administratrix of the Estate of Gilbert Carswell, deceased on behalf of the Next of Kin of Gilbert Carswell, deceased, Appellant v. BOROUGH OF HOMESTEAD; Mark Zuger, Chief of Police of the Borough of Homestead; Frank Snyder.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Appeal from the United States District Court for the Western District of Pennsylvania, Robert J. Cindrich, J.

COPYRIGHT MATERIAL OMITTED

Charles E. Evans, (Argued), Evans, Portnoy, Quinn & O'Connor, Pittsburgh, PA, for Appellant.

David J. MacMain, (Argued), Montgomery, McCracken, Walker & Rhoads, LLP, Philadelphia, PA, for Appellee Frank Snyder.

Paul D. Krepps, (Argued), Audrey J. Copeland, Marshall, Dennehey, Warner, Coleman and Goggin, Newton Square, PA, for Appellees Borough of Homestead and Police Chief Mark Zuger.

Before NYGAARD, McKEE, and WEIS, Circuit Judges.

WEIS, Circuit Judge.

In suits under 42 U.S.C. § 1983 for damages against government officials for violation of constitutional rights, the Supreme Court recommends that the courts rule on the constitutional issue before reaching qualified immunity. In this case, after hearing all of the plaintiff's evidence at trial, the District Court assumed, but did not decide whether a constitutional violation had occurred and then granted immunity to a police officer. In the circumstances of this case, we conclude that this procedure was not reversible error and we will affirm on the merits of the immunity ruling.

Gilbert Carswell, the plaintiff's husband, was fatally shot by a Homestead Borough patrolman in the course of apprehension by the police. Plaintiff brought suit pursuant to 42 U.S.C. § 1983 alleging that her husband's death was the result of constitutional violations by Officer Frank Snyder, Police Chief Mark Zuger, and the Borough of Homestead. The District Court declined to grant qualified immunity on summary judgment, reasoning that factual disputes existed at that time. At trial, after the plaintiff had rested at the end of her case, the District Court granted judgment to the defendants as a matter of law pursuant to Fed.R.Civ.P. 50.

The tragic death of Gilbert Carswell was the culmination of months of domestic discord. After three and one-half years of marriage, plaintiff and the decedent-husband became estranged. In July 1999, some four months before the shooting occurred, the plaintiff applied to the state court for a protection from abuse order ("PFA")1 because her husband presented "an immediate and present danger of abuse" to her and their children. Soon afterward, the Homestead Police went to the family residence when the husband, despite the PFA, came to the home and punched the plaintiff.

On July 27, 1999, plaintiff applied for a second PFA, asserting that her husband had ripped the telephone from the wall broken a table, threatened to hit her and sexually assaulted her. In early August, the police were called to the home when the husband struck the plaintiff in the face with his fist.

The plaintiff filed an indirect criminal complaint on October 10, 1999 because her husband threatened to kick her and pistol-whip her brother. One week later, the police were summoned because the husband had once again violated the PFA. In evading apprehension, he rammed a police car. As a consequence, a felony warrant was issued for his arrest.

On the evening of November 17 and the early morning hours of November 18, 1999, the husband entered the home on four separate occasions. He broke a window to gain admittance, ransacked the kitchen, and smashed the television set. On each occasion, the police came to the scene, but were unsuccessful in attempts to capture him.

After the second incident, plaintiff and a teenage girl, who was staying at the house, armed themselves with butcher knives. After the third entry, a patrolman remained in the house for an hour to provide security for the plaintiff. Moreover, the police decided that their previous shift would remain on duty together with the oncoming officers because of concern that the husband would return.

After the fourth entry which occurred at 12:40 a.m., the police again responded, but the husband escaped. To protect plaintiff, Officer Shipley remained in the home, as he had earlier, while other officers set up a perimeter in the area.

The husband was spotted at 2:10 a.m. by a police officer who radioed the information to the law enforcement personnel in the area. Two other officers, responding to the alert, cornered the husband on the porch of a home nearby. One of the policemen drew his gun, confronted the husband, and ordered him to lie on the floor. He raised his hands in a surrender gesture, but then suddenly jumped over the porch railing and ran into the darkness.

On hearing that the husband had been sighted, Officer Shipley left the family home and joined in the pursuit. He was standing in Boone Way, a narrow alley, when he saw the husband jump from the roof of a garage on the south side of the roadway. The husband then ran in a westerly direction with Shipley in pursuit.

At this point, defendant Snyder turned his police car into Boone Way from an intersecting street west of the garage. He saw the husband some 20-30 feet away, running toward the cruiser. Snyder stopped his car somewhat diagonally across the alley and got out on the left side, leaving the door open. The headlights were on as were the lights in the cruiser's overhead bracket directed toward each side of the alley.

Snyder then went to the right of his car about 2-3 feet behind the rear bumper. Despite orders to stop, the husband continued to run toward the police car, with hands extended in front of him at shoulder height, the palms pointed forward. Snyder could see that the husband's hands were empty when he reached the front of the patrol car.

As he took a firing position at the rear of his car, Snyder took off the safety on his gun. He fired when, according to the plaintiff's expert's testimony, the husband's chest was 24-36 inches from the gun's muzzle and the palm of his left hand was 12-24 inches away from the muzzle. The one shot that was fired entered the husband's chest in the center, struck the heart and exited on the extreme left of his back.

The Borough did not provide Snyder with a baton or pepper spray, nor were they required. The use of these nonlethal weapons was permitted, but only after an officer had successfully completed applicable familiarization programs. Snyder had not received such training and was armed only with a gun.

Plaintiff introduced portions of Snyder's discovery deposition into evidence, including a statement that he did not know that the husband was unarmed. Further, given the facts and evidence that he had at the time, Snyder believed the husband may have had a weapon on his person. Snyder also said that if he had had non-lethal weapons in his possession, he would not have pulled his gun from the holster. He further testified that he graduated from the police academy before being hired, and had attended yearly refresher courses provided by the Commonwealth of Pennsylvania.

Plaintiff called Dr. R.P. McCauley, a criminologist, to describe proper police procedures. He stated that "knowing that the guy was unarmed, a police officer should not have drawn his weapon from the holster, but should have pushed, tackled, or tripped the fleeing suspect."

Police Chief Zuger testified that the manual for Borough officers cautioned them about the use of deadly force and the continuum that was to be followed. He also explained that there was no requirement that officers become qualified to use pepper spray or a baton. Zuger said further that Snyder had been an officer for 14 years and that there had never been a complaint against him.

After the plaintiff rested, the defendants moved for judgment as a matter of law under Fed.R.Civ.P. 50. The district judge, referring to Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), stated that in ruling on qualified immunity, he would view the facts in the light most favorable to the plaintiff. He therefore assumed that the shooting was intentional and not accidental, but that he was not required to decide whether the officer's conduct was right or wrong. Rather, the issue was whether it was clear what a reasonable officer would have done and, if that was not established, the policeman was entitled to immunity. In the circumstances present, the court determined that Officer Snyder was entitled to qualified immunity and entered judgment in his favor.

The court further ruled that there was no evidence to fasten personal liability on defendant Zuger. As to him, in his official capacity, the grant of immunity to Snyder relieved Zuger as well as the Borough from liability. In addition, the trial judge found that nothing in the Constitution required a municipality, or its police department, to maintain a list of particularized type of equipment that must be furnished to its officers. The failure to provide non-lethal weapons did not rise to a constitutional level.

On appeal, plaintiff argues that the District Court erred in granting judgment for defendant Snyder because there were disputes over material facts and questions as to his credibility. Moreover, plaintiff asserts that Homestead and Chief Zuger should not have been automatically dismissed because Snyder was granted immunity. Snyder defends the District Court's ruling and asserts as an alternate basis for affirmance that the plaintiff failed to establish a violation of a constitutional right.

I.

Fed.R.Civ.P. 50(a)(1) provides that during a jury trial, if "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for...

To continue reading

Request your trial
312 cases
  • Christopher v. Nestlerode
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • June 22, 2005
    ...person acting "under color of state law," such that it is fair to hold the person responsible for the harm. See Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir.2004); Brown v. Muhlenberg Township, 269 F.3d 205, 214 (3d Cir.2001); see also Saucier v. Katz, 533 U.S. 194, 201, 121 ......
  • Verdier v. Darby Borough
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • June 20, 2011
    ...qualified immunity is a question of law that is properly answered by the court, not a jury.” Id. at 211 (citing Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir.2004)).1. Simpkins In addition to finding that summary judgment is appropriate on the constitutional claim against Simp......
  • Martin v. City of Reading
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • July 31, 2015
    ...the jury to "determine [ ] disputed historical facts material to the qualified immunity question" (quoting Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir.2004) )).1 Plaintiff's initial Complaint and Amended Complaint specified this Defendant's name as "Damon Kloc," but the corr......
  • Wheeler v. City of Philadelphia
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • April 21, 2005
    ...custom ... amounts to deliberate indifference to the rights of people with whom the police come into contact." Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir.2004) (citing City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Last, he must demons......
  • Request a trial to view additional results
2 books & journal articles
  • Constitutional violations (42 U.S.C. §1983)
    • United States
    • James Publishing Practical Law Books Federal Employment Jury Instructions - Volume I
    • April 30, 2014
    ...precautions against future violations, and that this failure, at least in part, led to their injury”); Carswell v. Borough of Homestead , 381 F.3d 235, 244 (3d Cir. 2004) (“There must be ‘a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.’”......
  • Stunning trends in shocking crimes: a comprehensive analysis of taser weapons.
    • United States
    • Journal of Law and Health Vol. 20 No. 2, June 2006
    • June 22, 2006
    ...for not employing less-lethal force. See, e.g., Plakas v. Drinski, 19 F.3d 1143, 1148 (7th Cir. 1994); Carswell v. Borough of Homestead, 381 F.3d 235, 245 (3d Cir. (99) See Michenfelder v. Summer, 860 F.2d 328, 336 (9th Cir. 1988). (100) Id. See also Caldwell v. Moore, 968 F.2d 595,600-01 (......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT