Berry v. City of Philadelphia

188 F. Supp. 3d 464, 2016 U.S. Dist. LEXIS 66479, 2016 WL 2939502
CourtDistrict Court, E.D. Pennsylvania
DecidedMay 20, 2016
DocketCIVIL ACTION No. 14-2608
StatusPublished
Cited by5 cases

This text of 188 F. Supp. 3d 464 (Berry v. City of Philadelphia) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berry v. City of Philadelphia, 188 F. Supp. 3d 464, 2016 U.S. Dist. LEXIS 66479, 2016 WL 2939502 (E.D. Pa. 2016).

Opinion

MEMORANDUM

Schiller, District Judge.

Philadelphia Police Officer James Boone shot and killed Michael Berry (“Berry”) in the early morning hours of Monday, August 27, 2012. Berry’s wife, acting on behalf of his estate, is now suing Officer Boone, the City of Philadelphia, and Officers Terry Mulvey and Thomas Bellon, who were also present at Berry’s death. All Defendants now move for summary judgment. The Court will grant in part and deny in part the motion, allowing Plaintiffs 42 U.S.C. § 1983 excessive force claim against Officer Boone and her Mo-nell claim against the City of Philadelphia to go forward.

I. BACKGROUND

James Boone entered the police academy in 2007 and became a Philadelphia Police Officer in 2008. (Pl.’s Resp. Mot. Summ. J., Ex. B [Boone Service Record].) Boone failed his first psychological examination necessary to become a police officer on January 27, 2007. (Id., Ex. A [Psych [469]*469Records].) Nonetheless, Boone was reevaluated on August 30, 2007 and passed. (Id.) In Officer Boone’s eight years on the force, he has discharged his weapon four times, two of which have resulted in deaths. (Id., Ex. W [Concise Officer History]-)

On the night of Sunday, August -26, 2012 into Monday, August 27, 2012, Officer Boone was working the 8 p.m. to 4 a.m. shift with fellow officers Mulvey and Bel-lon. (Defs.’ Mot. Summ. J., Ex. B [Boone IAD Statement].) Officer Boone was driving an unmarked Crown Victoria, and all three officers were dressed in plainclothes. (Id.) Officer Bellon sat in the front passenger seat and Officer Mulvey sat directly behind him. (Id.) Shortly after midnight, they responded to a radio call reporting a large fight in front of a bar and a person armed with a weapon at D Street and Wyoming Avenue. (Id., Ex. C [Radio Recordings].) The officers arrived at the intersection traveling north on D Street. (Id., Ex. D [Boone Dep.] at 24.) In addition to the altercation in the street directly in front of them, they saw Berry to their left, leaning into a red parked car on Wyoming Ave. (Id. at 27-28.) Officer Boone believed that Berry was assaulting someone who was in the car, so he turned westbound onto Wyoming Avenue and parked behind the red car. (Boone IAD Statement.)

A surveillance video captured the events that followed. (Defs.’ Mot. Summ. J., Ex. E [Video].) Officer Boone exited the,car into the street and Officer Bellon exited onto the sidewalk. (Id.) Officer Mulvey exited onto the sidewalk slightly after Officers Boone and Bellon. (Id., Ex. F [Slow Motion Video]:)%As Officers Boone and Bellon stepped out of the Crown Victoria, Berry turned away from the window of the red car. (Id.) He walked toward Officer Bellon, who simultaneously moved toward Berry. (Id.) Officer Boone, who was then walking around the front of the Crown Victoria, discharged, eight rounds from his Glock semi-automatic pistol, striking Berry six times. (Pl.’s Resp. Mot. Summ. J., Ex. N [IAD Summary].) The shooting occurred within five seconds of Officer Boone stepping out of his car. (Video.) Boone radioed for medical assistance, and Berry was pronounced dead on the scene. (Radio Recordings.)

Officer Boone averred that when he got out of the Crown Victoria, he saw that Berry was wearing a set of brass knuckles with a knife attached to them. (Boone Dep. at 36.) In his deposition, he initially stated the knife was in Berry’s right hand, which would have been nearer to Officer Boone. (Boone Dep. at 36-37.) However, in his Internal Affairs Division statement in March 2013, he stated that the knife was in Berry’s left hand. (Boone IAD Statement at 5.) Officer Boone also stated that Officer Bellon displayed his badge and identified himself as police prior to the shooting, and that both Officers Boone and Bellon yelled at Berry to stop and drop the knife. (Boone Dep. at 40-41.) Officer Boone stated that he shot Berry in order to protect Officer Bellon from being stabbed. (Boone IAD Statement at 6.)

Officer Bellon stated that prior to the shooting he showed his badge and said “police, stop” to Berry, who was coming forward with a blade in his right hand. (Defs.’ Mot. Summ. J., Ex. I [Bellon Dep.] at 78-83.) Officer Bellon averred that he was attempting to withdraw his firearm to defend, himself at the time Officer Boone shot Berry. (Id. at 81.) However, in the surveillance video, it appears that Officer Bellon did not reach for his weapon until after Officer Boone began to shoot. (Slow Motion Video.) Officer Mulvey also stated that he saw the knife in Berry’s right hand, and then identified himself as police and told Berry to drop the weapon and get on the ground. (Defs.’ Mot. Summ. J., Ex. [470]*470G [Mulvey Dep.] at 47-49.) Officer Boone shot Berry about two seconds after Officer Mulvey stepped out of the car. (Video.) The knife is not visible in the video, but a set of brass knuckles with a 3 ½-inch blade was collected at the scene. (Id.; IAD Summary at 5.).,

Berry’s death came during a period of rising officer-involved shootings within the Philadelphia Police Department (“PPD”). (Pl.’s Resp. Mot. Summ. J., Ex. V [DOJ Report] at 1.) As a result, in 2013, PPD Commissioner Charles Ramsey requested technical assistance from the Department of Justice (“DOJ”), who set out to examine and reform the PPD’s deadly force policies and practices. (Id.) The report, titled Collaborative Reform Initiative: An Assessment of Deadly Force in the Philadelphia Police Department (“DOJ Report”), was issued in 2015 and includes numerous recommendations for improvements to the PPD’s use of force policies and training programs.

Plaintiff filed this lawsuit in state court in April 2014 and Defendants removed to this Court on May 6, 2014. Pursuant to 42 U.S.C. § 1983, the Complaint alleges violations of the Fourth and Fourteenth Amendments and Monell municipal violations, as well as state tort law and constitutional claims. The Court now grants Defendants’ motion for summary judgment on the Fourteenth Amendment, state law, and state constitutional claim's, and grants summary judgment in favor of Officers Bellon and Mulvey on all claims. It denies the -motion with regard to Plaintiffs Fourth Amendment excessive force claim against Officer Boone and her Monell claim against the City of Philadelphia.. :

II. STANDARD OF REVIEW

Summary judgment is appropriate when the admissible evidence fails to demonstrate a genuine dispute of material fact and when the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When the movant does not -bear the burden of persuasion at trial, it may meet its burden on summary judgment by showing that the nonmoving party’s ' evidence is insufficient to carry its burden of persuasion. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

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Bluebook (online)
188 F. Supp. 3d 464, 2016 U.S. Dist. LEXIS 66479, 2016 WL 2939502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-city-of-philadelphia-paed-2016.