Forbes v. Township of Lower Merion

76 F. App'x 475
CourtCourt of Appeals for the Third Circuit
DecidedOctober 1, 2003
DocketNo. 01-3942
StatusPublished
Cited by1 cases

This text of 76 F. App'x 475 (Forbes v. Township of Lower Merion) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Forbes v. Township of Lower Merion, 76 F. App'x 475 (3d Cir. 2003).

Opinion

OPINION OF THE COURT

ALITO, Circuit Judge.

In Forbes v. Township of Lower Merion, 313 F.3d 144 (3d Cir.2002) (hereinafter Forbes I), this panel vacated an order denying summary judgment to two police officers who had asserted qualified immunity in a 42 U.S.C. § 1983 action against them for their role in the fatal shooting of a suspect. We retained jurisdiction and remanded for further proceedings in accordance with a new supervisory rule. See id. at 146. On remand, the District Court carefully reconsidered the qualified-immunity issue and granted summary judgment in favor of defendanVappellant McGowan but denied summary judgment to defendant/appellant Salkowski. See Forbes v. Township of Lower Merion, No. 00-0930, 2003 U.S. Dist. LEXIS 7713 (E.D.Pa. Apr. 10, 2003). We now affirm the denial of Salkowski’s motion for essentially the reasons set out in the opinion of the District Court. In view of the relief granted by the District Court, we dismiss McGowan’s appeal as moot.

I.

In an appeal from an order denying a qualified-immunity summary judgment motion, we do not have jurisdiction to review whether the District Court correctly identified the set of facts that are sufficiently supported by the record. Ziccardi v. City of Philadelphia, 288 F.3d 57, 61 (3d Cir.2002). Rather, our jurisdiction is limited to “review[ing] whether the set of facts identified by the district court is sufficient [477]*477to establish a violation of a clearly established constitutional right.” Id. On remand, the District Court concluded that the summary judgment record, when viewed in the light most favorable to the plaintiffs, is sufficient to prove the following material facts:

• Forbes was armed only with a wooden staff.
• The officers had no information that he possessed anything else that might be considered a weapon.
• The wooden staff did not reasonably resemble a firearm or other “weapon per se,” i.e., an implement specifically designed for use as a weapon.
• “Rather than attempting to assault defendant Salkowski, the decedent was trying to escape from him at the time he was shot.” Specifically, “the decedent was facing and moving westerly while defendant Salkowski was facing southerly and back pedaling when he fired his weapon.”
• When he was shot, “the decedent was some distance from defendant Salkowski.”

As we have emphasized, we must accept these facts as true for the purposes of this appeal and inquire only whether they are “sufficient to establish a violation of a clearly established constitutional right.” Ziccardi, 288 F.3d at 61. This is a two-part inquiry. In Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999), the Supreme Court held that “[a] court evaluating a claim of qualified immunity ‘must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.’ ” Id. at 609, 119 S.Ct. 1692 (quoting Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999)). In light of Wilson’s use of the word “must,” we held in Sutton v. Rasheed, 323 F.3d 236, 250 n. 27 (3d Cir.2003), that the initial constitutional inquiry is a “mandatory” prerequisite to a qualified-immunity analysis and not an aspiration “describing what the courts ordinarily should do.”

II.

In Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) supra, the Supreme Court described the constitutional standard for the use of deadly force by police officers as follows:

Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.... A police officer may not seize an unarmed, nondangerous suspect by shooting him dead____ Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

Id. at 11-12, 105 S.Ct. 1694 (emphasis added).

Based on the facts identified by the District Court, a reasonable jury could find that, at the time in question, Forbes was not threatening Salkowski with a weapon and did not pose an immediate threat to Salkowski or others. As noted, the District Court concluded (and for present purposes, we must accept) that the wooden [478]*478staff did not reasonably resemble a firearm and that at the time of the shooting Forbes was some distance from SalkowsM and was moving away from him. Under these circumstances, Forbes did not pose an immediate threat to SalkowsM, and no reasonable officer could have believed that the use of deadly force was justified to prevent serious physical harm to himself.

Based on the facts identified by the District Court, a reasonable jury could also find that SalkowsM did not have “probable cause to believe that [Forbes had] committed a crime involving the infliction or threatened infliction of serious physical harm.” Tennessee v. Garner, 471 U.S. at 11, 105 S.Ct. 1694. While the officers had been informed that Forbes had committed a robbery, not every robbery involves “the infliction or threatened infliction of serious physical harm.” Indeed, in Pennsylvania, “[a] person is guilty of robbery if, in the course of committing a theft, he ... physically takes or removes property from the person of another by force however slight. ” 18 Pa. Cons.Stat. Ann. § 3701(a)(l)(v)(em-phasis added).

SalkowsM argues that even if his use of force exceeded the constitutional limit established by Gamer, he could have believed that he was acting lawfully on the basis of 18 Pa. Cons.St.

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Bluebook (online)
76 F. App'x 475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forbes-v-township-of-lower-merion-ca3-2003.