El v. City of Pittsburgh

• Decision Date: 16 September 2020
• Docket Number: No. 18-2856,18-2856
• Parties: Will EL, an adult individual; Beyshaud El, an adult individual v. CITY OF PITTSBURGH, a municipal Corporation; Reyne Kacsuta, Individually, and in her official capacities, as a police officer of the City of Pittsburgh; Frank Welling, Individually, and in his official capacities, as a police officer of the City of Pittsburgh; Ryan Warnock, Individually, and in his official capacities, as a police officer of the City of Pittsburgh; District Attorney Allegheny County Frank Welling; Reyne Kacsuta; Ryan Warnock, Appellants
• Court: U.S. Court of Appeals — Third Circuit

975 F.3d 327

Will EL, an adult individual; Beyshaud El, an adult individual

v.CITY OF PITTSBURGH, a municipal Corporation; Reyne Kacsuta, Individually, and in her official capacities, as a police officer of the City of Pittsburgh; Frank Welling, Individually, and in his official capacities, as a police officer of the City of Pittsburgh; Ryan Warnock, Individually, and in his official capacities, as a police officer of the City of Pittsburgh; District Attorney Allegheny County Frank Welling; Reyne Kacsuta; Ryan Warnock, Appellants

No. 18-2856

United States Court of Appeals, Third Circuit.

Argued April 24, 2020

Filed: September 16, 2020

OPINION OF THE COURT

FISHER, Circuit Judge.

On a summer day in 2013, brothers Will and Beyshaud El left a corner store in their neighborhood and encountered Pittsburgh Police Lieutenant Reyne Kacsuta. The men were unarmed and were not committing a crime. Nor did they flee or resist Lieutenant Kacsuta or the five other officers who quickly joined her. Nevertheless, the incident ended with Officer Frank Welling slamming Will against a building and taking him to the ground, and Officer Ryan Warnock deploying his taser on Beyshaud.

The brothers were convicted in state court of summary disorderly conduct and summary harassment. They then sued Lieutenant Kacsuta and Officers Welling and Warnock in federal court, asserting Fourth Amendment excessive force claims and state law assault and battery claims. The officers moved for summary judgment, which the District Court granted in part and denied in part. The officers appeal. We will reverse the denial of summary judgment as to Lieutenant Kacsuta and affirm the denial of summary judgment as to Officer Welling. Because we lack jurisdiction to consider whether the District Court erred in denying the motion as to Officer Warnock, we will dismiss the appeal in part.

I.

A. Factual History

On July 2, 2013, Lieutenant Kacsuta was in her cruiser outside a convenience store in the Homewood neighborhood of Pittsburgh. She saw Beyshaud and Will El leaving the store and thought that Beyshaud was holding "a green foil object." El v. City of Pittsburgh , No. CV 15-834, 2018 WL 3707420, at *3 (W.D. Pa. Aug. 3, 2018). Lieutenant Kacsuta suspected that the object was synthetic marijuana, which reportedly was being sold out of the store. She drove up to the brothers and asked to speak to them, but they declined and walked away. With her suspicions further heightened, she turned her car around to follow them.

Knowing that Officers Warnock and Welling were nearby, Lieutenant Kacsuta called for backup. Then she got out of her car and approached the brothers. They obeyed her direction to sit down on the stoop of a vacant storefront, and, at her request, Will gave her his identification. Will then emptied his pockets onto the sidewalk and directed Beyshaud to do the same because he wanted Lieutenant Kacsuta to know that "they did not have anything on them and they were not doing anything." Id.

The brothers did not have synthetic marijuana, but Lieutenant Kacsuta thought they had left the store with a tobacco product. Although Beyshaud was 18 years old, he did not have identification—and without proof of his age, Lieutenant Kacsuta suspected he might have made an underage tobacco purchase. (Will's identification, which he had showed the lieutenant, confirmed he was over 18.)

Officers Warnock and Welling arrived in less than two minutes. Id. at *4. Neither of them knew why the Els were detained, and Lieutenant Kacsuta did not direct them to make sure the brothers remained seated. "Ultimately, five ... officers [including Warnock and Welling] reported to the scene." Id. A dashboard camera in one of the squad cars recorded video of what happened next. The camera captured clear images, and the resulting video has been exceedingly helpful as we have studied the events at the heart of this case. See JA72 (Video). The camera's microphone picked up only muffled and partial audio, see id. —but those involved subsequently testified about was said, and their testimony does not conflict with one another or with the video.

With the Els sitting on the storefront stoop, Lieutenant Kacsuta picked up Will's identification from the ground, looked at it, and tossed it back on the ground. Beyshaud reached for his brother's identification, but Lieutenant Kacsuta stepped on it, preventing him from picking it up. The Els complained that they were being harassed.

Will testified that in response to his comment about being harassed, Officer Welling said, "[D]o you want to know what it feels like to be harassed?" Id. Will stood up to, as he testified, "make sure the lieutenant heard what [Officer Welling] said to me." JA360. The video shows Will talking to Officer Welling as each of the men gestured with a pointed forefinger. The events that happened next cascaded quickly and were over in about ten seconds.

Will "took one or two small steps in the direction of Lieutenant Kacsuta and Officer Warnock." El , 2018 WL 3707420, at *4. Officer Welling then "grabbed Will ... by his wrist and neck and slammed him back into the wall of the vacant storefront ... and on to the pavement." Id. Beyshaud, who had still been sitting on the stoop, "immediately stood up, turned towards Officer Welling, and attempted to punch [him] and otherwise defend his brother." Id. Officer Warnock reacted to Beyshaud's swing by "deploy[ing] his taser into Beyshaud[’s] side ..., causing Beyshaud ... to fall to the ground." Id.

When the dust settled, both brothers were lying on the ground. They did not resist as six officers handcuffed and arrested them. Beyshaud was taken to the hospital and then to jail. Will went directly to jail and, after he was released, visited the hospital emergency department for lower back pain. He was told he had a contusion on his hip

.

The Allegheny County District Attorney initially charged Will and Beyshaud with aggravated assault of a police officer but later amended the charges to summary disorderly conduct against Will, 18 Pa. Cons. Stat. § 5503(a)(4), and summary harassment against Beyshaud, id. § 2709(a)(1). The brothers were tried jointly in the Allegheny County Court of Common Pleas without a jury and were convicted. Neither appealed his conviction, so the Common Pleas judgments are valid and final.

B. Procedural History

In 2015, the Els sued the City of Pittsburgh and several police officers, including the three appellants: Lieutenant Kacsuta, Officer Welling, and Officer Warnock. The complaint asserted a 42 U.S.C. § 1983 claim for excessive force in violation of the Fourth Amendment and a state law claim for assault and battery.¹ In early 2018, after discovery, the defendants filed a motion for summary judgment. On the § 1983 excessive force claim, the defendants argued that they did not use excessive force, and if they did, they were entitled to qualified immunity. On the state law assault and battery claim, the defendants argued that for the same reasons the force was not excessive, there was no assault and battery. The District Court granted the motion as to the state law claim against Lieutenant Kacsuta, and granted it in part and denied it in part as to the § 1983 excessive force claim against her. Conversely, the District Court denied the motion as to the state law claim against Officer Warnock but granted it as to the § 1983 excessive force claim against him. Finally, the District Court denied the motion as to both claims against Officer Welling. The officers appeal.

II.

The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction under 28 U.S.C. § 1291 to consider " ‘a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law ," because it "is an appealable final decision’ under the collateral order doctrine."² Ziccardi v. City of Philadelphia , 288 F.3d 57, 61 (3d Cir. 2002) (quoting Mitchell v. Forsyth , 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ). When we review a denial of summary judgment based on qualified immunity and there is a video in the record "capturing the events in question," we must accept the trial court's factual determinations unless they are "blatantly contradicted" by the video. Scott v. Harris , 550 U.S. 372, 378, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; see also Blaylock , 504 F.3d at 409 (where a district court "determines ‘that there is sufficient record evidence to support a set of facts under which there would be no immunity,’ we must accept that set of facts on interlocutory review" (quoting Schieber v. City of Philadelphia , 320 F.3d 409, 415 (3d Cir. 2003) )). "Once we accept the set of facts that the District Court found to be sufficiently supported, ... we may review the District Court's conclusion that the defendants would not be immune from liability if those facts were proved at trial." Id. Our review of these questions of law is plenary. Schieber , 320 F.3d at 415.

This appeal also requires us to consider our own jurisdiction, which we always have jurisdiction to do and which we review on a plenary basis. In re Lipitor Antitrust Litig. , 855 F.3d 126, 142 (3d Cir. 2017), as amended (Apr. 19, 2017) (quoting United States v. Ruiz , 536 U.S. 622, 628, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) ).

We lack jurisdiction to consider Officer Warnock's argument that the District Court erred in denying his summary judgment motion on the state law claim. In the District Court, Officer Warnock and the other officers argued that they were entitled to summary judgment on the state law claim because the force they used was "reasonable and necessary and did not rise to the level of assault and battery." District Ct. Docket 106 at 2, ¶ 7. They invoked neither Pennsylvania official immunity under 42 Pa. Cons. Stat. § 8546 nor qualified immunity.³ A denial of qualified immunity would have been an appealable final order, Ziccardi , 288 F.3d at 61, and we have similarly...