Peroza-Benitez v. Smith

• Decision Date: 08 April 2021
• Docket Number: No. 20-1390,20-1390
• Citation: 994 F.3d 157
• Parties: Jose Antonio PEROZA-BENITEZ, Appellant v. C.I. Darren C. SMITH; C.I. Kevin Haser; C.I. Michael Perkins; Officer Daniel White; Officer Nicholas Epolito
• Court: U.S. Court of Appeals — Third Circuit

994 F.3d 157

Jose Antonio PEROZA-BENITEZ, Appellant

v.C.I. Darren C. SMITH; C.I. Kevin Haser; C.I. Michael Perkins; Officer Daniel White; Officer Nicholas Epolito

No. 20-1390

United States Court of Appeals, Third Circuit.

Argued November 18, 2020

Opinion Filed: April 8, 2021

Tyson Y. Herrold [ARGUED], Kevin M. Bovard, Baker & Hostetler LLP, 2929 Arch Street, Cira Centre, 12th Floor, Philadelphia, PA 19104, Counsel for Appellant.

David J. MacMain, Tricia M. Ambrose [ARGUED], MacMain Connell & Leinhauser, 433 West Market Street, Suite 200, West Chester, PA 19382, Counsel for Appellees.

Before: JORDAN, KRAUSE, and RESTREPO, Circuit Judges

OPINION OF THE COURT

RESTREPO, Circuit Judge.

This civil rights action arises from events that took place during the execution of a search warrant at the home of Plaintiff-Appellant Jose Antonio Peroza-Benitez. Peroza-Benitez brought suit against members of the City of Reading Police Department pursuant to 42 U.S.C. § 1983, alleging violations of his rights under the Fourth and Fourteenth Amendments of the United States Constitution. Peroza-Benitez also asserted battery claims under Pennsylvania common law. Defendants moved for summary judgment on the grounds of qualified immunity, which Peroza-Benitez opposed only as to two Defendants, Criminal Investigator (C.I.) Kevin Haser and Officer Daniel White. The District Court granted summary judgment in favor of C.I. Haser and Officer White and declined to exercise supplemental jurisdiction over Peroza-Benitez's state law claims. Peroza-Benitez appeals. For the reasons set forth in this opinion, we will vacate the District Court's order and remand for further proceedings.

I.

A.

In the predawn hours of October 8, 2015, Peroza-Benitez awoke to the sound of members of the City of Reading Police Department breaking down the back door to his third-floor apartment, pursuant to the execution of a search warrant related to suspected controlled substances offenses. "Scared" and unaware of who was entering his apartment, Peroza-Benitez climbed out of his bedroom window onto the roof of his building wearing only an undershirt, boxer shorts, and flip flops. App. 35-36. Shortly thereafter, Peroza-Benitez realized the police were in pursuit and, rather than surrendering, led officers on a rooftop chase.

Officer Darren Smith, one of the officers pursuing Peroza-Benitez on the roof, radioed that Peroza-Benitez was in possession of a firearm. Officer Smith testified that he told Peroza-Benitez "[n]umerous times to drop the gun" and, in response, Peroza-Benitez said, "I'm not gonna shoot anybody, or something along those lines." App. 52. Audio recordings corroborate that officers were told over the radio that Peroza-Benitez had a firearm. According to Officer Smith, Peroza-Benitez dropped the firearm while on the roof, App. 52-53, and several officers testified that, after Peroza-Benitez dropped the firearm, it fell off of the roof and landed on the ground in an alley. App. 52-53, 59, 97, 254. Peroza-Benitez denies having a firearm at any time during the course of the incident.¹ App. 36.

However, officers recovered a firearm at the scene. There is conflicting testimony as to where the firearm was recovered: The police report indicates that the firearm was "found on Peroza-Benitez possession [sic]," App. 309, yet Officer Nicholas Epolito testified that officers located the firearm in the alley. The Defendants did agree that no items except clothing were "found on [Peroza-Benitez's] person after his arrest." App. 299.

At the end of the block, Peroza-Benitez entered an abandoned building. Several officers, including Officer Smith and C.I. Haser (who had been trailing the chase on street level), followed Peroza-Benitez into the abandoned building and cornered him on the second floor. Peroza-Benitez proceeded to climb out of a street-facing, second-story window.

By the time that Peroza-Benitez climbed out of the window, C.I. Haser was aware that Peroza-Benitez was unarmed and shifted his attention to Peroza-Benitez's safety, recognizing that the over ten-foot fall from the window could result in injury. App. 185, 187. With their firearms holstered, Officer Smith and C.I. Haser grabbed ahold of Peroza-Benitez and attempted to hoist him back through the window. App. 56-57, 185-86. Both Officer Smith and C.I. Haser testified that Peroza-Benitez – injured and "slippery" as he was covered in his own blood – resisted their efforts. App. 56-57, 185-86.

According to Peroza-Benitez, as he was hanging from the windowsill with his hands, his feet "dangling," C.I. Haser "repeatedly" punched him in the temple region of his head with a closed fist. App. 173. C.I. Haser testified that he punched Peroza-Benitez "[o]ne or two times .... [p]robably two," with the purpose being to "stun" and "disorient" Peroza-Benitez into compliance "to help him out." App. 186-87. C.I. Haser testified that his punches had no effect on Peroza-Benitez, who continued to resist against officers’ efforts to pull him back inside, although C.I. Haser noted that Peroza-Benitez did not use any force against them. It is unclear from the record when the officers let go of Peroza-Benitez. Nevertheless, at a certain point, C.I. Haser thought "we're like, screw it, you want to fall, you're gonna fall. So we let go of him." App. 187.

And Peroza-Benitez fell. C.I. Haser described Peroza-Benitez's fall as follows:

And he's hanging from the windowsill. Now his feet are dangling below him. And he's just hanging there and he is looking at us.

We're like, do you want us to help you? And he's just looking at us and his fingers slide off and he drops straight down ....

App. 187. According to Peroza-Benitez, C.I. Haser's punches caused him to fall.

A number of officers, as well as a police K9, had assembled on the otherwise empty street and sidewalk in front of the building and witnessed Peroza-Benitez's fall from the window. One such officer was Officer White, who positioned himself on the sidewalk below the window where Peroza-Benitez was hanging, only "10 feet" from where Peroza-Benitez would have been had he "climbed down and stood on the sidewalk or the porch." App. 96-97. Officer White had heard the earlier radio transmission that Peroza-Benitez was armed and assumed that was still the case given that he "did not see a lack of a weapon" on Peroza-Benitez when he was hanging from the window. App. 97. Officer White testified that Peroza-Benitez was "wearing some type of T-shirt" and pants as he was hanging from the window, App. 96, however, Peroza-Benitez indicated that he "was wearing only boxer shorts" at the time, App. 173.

Once C.I. Haser and Officer Smith appeared in the window, Officer White holstered his firearm (which he had been aiming at Peroza-Benitez) and drew his taser, in part because he believed that "the situation was becoming more contained." App. 97, 108. According to Officer White, Peroza-Benitez was "figuratively boxed in" at this point. App. 98-99. Officer White indicated to his fellow officers that he was ready to assist should Peroza-Benitez fall. Officer White did not observe a weapon, or "the absence of one," in Peroza-Benitez's hands as he fell from the window. App. 101.

Falling feet first, Peroza-Benitez's leg collided with the railing of an elevated porch before landing backwards with a "thud" into a below-ground, concrete stairwell. App. 101. Officers’ testimony differs as to whether Peroza-Benitez voluntarily moved upon landing. For example, Officer White testified that Peroza-Benitez "started to sit forward" upon landing, App. 101, while C.I. Michael Perkins testified that "[a]s soon as [Peroza-Benitez] hit the ground, he made a [lunging] motion like he was going to start running again," App. 262. In contrast, Peroza-Benitez testified that he hit his head on the concrete steps as a result of the fall and was knocked temporarily unconscious.

Officer White tased Peroza-Benitez after he struck the concrete steps. Officer White, without providing a verbal warning, deployed his taser in dart mode for a 5-second cycle. Accounts differ as to the exact duration of time that elapsed between Peroza-Benitez landing in the stairwell and getting tased, ranging from "as soon as he hit the concrete" to "less than five seconds." App. 60, 101, 189, 222, 264. However, the parties agree that Peroza-Benitez was tased either immediately or almost immediately upon landing. Appellant's Br. 8; Appellees’ Br. 6.

Soon thereafter, officers took Peroza-Benitez into custody. Peroza-Benitez was transferred from the scene to the hospital, where he received care for "trauma" and underwent surgery for arm injuries and a fractured leg

. App. 325.

B.

On September 5, 2017, Peroza-Benitez commenced the instant action. The District Court appointed pro bono counsel² in December 2017, and Peroza-Benitez thereafter filed an amended complaint pursuant to 42 U.S.C. § 1983, alleging that five officers used excessive force in violation of his Fourth and Fourteenth Amendment rights during his October 2015 arrest. Peroza-Benitez also asserted battery claims under Pennsylvania common law.

Following the close of discovery, Defendants filed a motion for summary judgment on the grounds of qualified immunity. Peroza-Benitez opposed the motion only as to C.I. Haser and Officer White. On January 24, 2020, the District Court granted Defendants’ motion for summary judgment, finding that both C.I. Haser and Officer White were entitled to qualified immunity because Peroza-Benitez's constitutional rights at issue were not "clearly established" at the time of the incident. The District Court declined to exercise supplemental jurisdiction over Peroza-Benitez's state law claims pursuant to 28 U.S.C. § 1367(c). Peroza-Benitez appeals.

II.

The District Court had jurisdiction over Peroza-Benitez's Fourth Amendment and Fourteenth Amendment claims under 28 U.S.C. §§ 1331, 1343 and over Peroza-Benitez's state law claims pursuant to 28 U.S.C. § 1367. We exercise...