Geist v. Ammary

E.D. Pennsylvania

Geist v. Ammary

40 F. Supp. 3d 467, 2014 U.S. Dist. LEXIS 117046, 2014 WL 4160346

District Court, E.D. Pennsylvania·Decided August 22, 2014·No. Civil Action No. 11-07532·Published·Cited by 24 cases

Opinion

MEMORANDUM

STENGEL, District Judge.

This is a § 1983 action against a police officer and the City of Allentown brought by Victoria Geist on behalf of her daughter, Keshana Wilson. The plaintiffs excessive force claim and failure-to-train claim stem from a school police officer tasing Ms. Wilson in the groin. Much of the incident is caught on a security tape. The defendant has filed a motion for sum[471] mary judgment. For the following reasons, I will deny this motion.

I. BACKGROUND¹

Victoria Geist is the mother of Keshana Wilson, who was fourteen years old at the time of the alleged incident.² At that time, Ms. Wilson was about 5 foot, 81 /2 inches and about 190 pounds.³ She was in her first year at Allen Dieruff High School in Allentown, PA.⁴ Defendant Jason Ammary is a police officer employed by the Allentown Police Department, who was assigned as a School Resource Officer (SRO) at Dieruff High School beginning in 2011.⁵

On Thursday, September 29, 2011, Ms. Wilson was walking in the street near Dieruff High after the students at the school were dismissed for the day.⁶ Ms. Wilson, who is bi-racial, was walking with two other female friends—one of whom was white and one of whom was light-skinned Hispanic.⁷ At the same time, Officer Ammary and school security officers were instructing students to disperse and to move out of the roadway.⁸

Subsequently, Officer Ammary grabbed Ms. Wilson’s arm from behind without identifying himself as a police officer.⁹ Of[472] ficer Ammary did not seize or touch the two white companions, who were walking with Ms. Wilson. Ms. Wilson pulled away and continued to walk away from Officer Ammary.¹⁰ Officer Ammary then grabbed both her arms and twisted her around to face away from him.¹¹ He pushed her against a parked car nearby.¹² A straggle between them ensued.¹³

At one point, Officer Ammary stepped away from Ms. Wilson and deployed his Taser.¹⁴ The Taser ejected barbs attached [473] to electrical wires.¹⁵ These barbs hit Ms. Wilson in the lower abdomen and groin.¹⁶ After she was hit in the groin, Ms. Wilson fell to the ground.¹⁷ She remained on the ground until she was transported to the hospital by ambulance, to have the barbs removed.¹⁸ Part of the incident was captured on a school security video.

Four or five security officers from the school were also present at the scene of the incident.¹⁹ After the tasing, crowds of students watching the incident began yelling obscenities at Officer Ammary.²⁰ Another disruptive student was placed under arrest.²¹ Ms. Wilson was later adjudicated delinquent on the charges of Failure to Disperse and Resisting Arrest.

On December 7, 2011, Ms. Geist, on behalf of Ms. Wilson, filed this action against Officer Ammary and the City of Allentown under § 1983, alleging excessive force and Monell liability. As a result of the tasing, Ms. Wilson alleges that she suffered pain, emotional distress, and humiliation.²² I previously dismissed the [474] plaintiffs claims for false arrest and retaliatory filing of charges.²³ I had also referred several discovery disputes to the Honorable Magistrate Judge Henry Per-kin, which he has since resolved.²⁴ The defendants now move for summary judgment.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” when “a reasonable jury could return a verdict for the nonmoving party” based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual, dispute is “material” when it “might affect the outcome of the suit under the governing law.” Id.

A party seeking summary judgment initially bears responsibility for informing the court of the basis for its motion and identifying those portions of the record that “it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party’s initial Celotex burden can be met simply by demonstrating to the district court that “there is an absence of evidence to support the non-moving party’s case.” Id. at 325, 106 S.Ct. 2548. After the moving party has met its initial burden, the adverse party’s response must cite “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1). Summary judgment is therefore appropriate when the non-moving party fails to rebut by making a factual showing that is “sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

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MEMORANDUM

STENGEL, District Judge.

This is a § 1983 action against a police officer and the City of Allentown brought by Victoria Geist on behalf of her daughter, Keshana Wilson. The plaintiffs excessive force claim and failure-to-train claim stem from a school police officer tasing Ms. Wilson in the groin. Much of the incident is caught on a security tape. The defendant has filed a motion for sum[471] mary judgment. For the following reasons, I will deny this motion.

I. BACKGROUND¹

Victoria Geist is the mother of Keshana Wilson, who was fourteen years old at the time of the alleged incident.² At that time, Ms. Wilson was about 5 foot, 81 /2 inches and about 190 pounds.³ She was in her first year at Allen Dieruff High School in Allentown, PA.⁴ Defendant Jason Ammary is a police officer employed by the Allentown Police Department, who was assigned as a School Resource Officer (SRO) at Dieruff High School beginning in 2011.⁵

On Thursday, September 29, 2011, Ms. Wilson was walking in the street near Dieruff High after the students at the school were dismissed for the day.⁶ Ms. Wilson, who is bi-racial, was walking with two other female friends—one of whom was white and one of whom was light-skinned Hispanic.⁷ At the same time, Officer Ammary and school security officers were instructing students to disperse and to move out of the roadway.⁸

Subsequently, Officer Ammary grabbed Ms. Wilson’s arm from behind without identifying himself as a police officer.⁹ Of[472] ficer Ammary did not seize or touch the two white companions, who were walking with Ms. Wilson. Ms. Wilson pulled away and continued to walk away from Officer Ammary.¹⁰ Officer Ammary then grabbed both her arms and twisted her around to face away from him.¹¹ He pushed her against a parked car nearby.¹² A straggle between them ensued.¹³

At one point, Officer Ammary stepped away from Ms. Wilson and deployed his Taser.¹⁴ The Taser ejected barbs attached [473] to electrical wires.¹⁵ These barbs hit Ms. Wilson in the lower abdomen and groin.¹⁶ After she was hit in the groin, Ms. Wilson fell to the ground.¹⁷ She remained on the ground until she was transported to the hospital by ambulance, to have the barbs removed.¹⁸ Part of the incident was captured on a school security video.

Four or five security officers from the school were also present at the scene of the incident.¹⁹ After the tasing, crowds of students watching the incident began yelling obscenities at Officer Ammary.²⁰ Another disruptive student was placed under arrest.²¹ Ms. Wilson was later adjudicated delinquent on the charges of Failure to Disperse and Resisting Arrest.

On December 7, 2011, Ms. Geist, on behalf of Ms. Wilson, filed this action against Officer Ammary and the City of Allentown under § 1983, alleging excessive force and Monell liability. As a result of the tasing, Ms. Wilson alleges that she suffered pain, emotional distress, and humiliation.²² I previously dismissed the [474] plaintiffs claims for false arrest and retaliatory filing of charges.²³ I had also referred several discovery disputes to the Honorable Magistrate Judge Henry Per-kin, which he has since resolved.²⁴ The defendants now move for summary judgment.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” when “a reasonable jury could return a verdict for the nonmoving party” based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual, dispute is “material” when it “might affect the outcome of the suit under the governing law.” Id.

A party seeking summary judgment initially bears responsibility for informing the court of the basis for its motion and identifying those portions of the record that “it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party’s initial Celotex burden can be met simply by demonstrating to the district court that “there is an absence of evidence to support the non-moving party’s case.” Id. at 325, 106 S.Ct. 2548. After the moving party has met its initial burden, the adverse party’s response must cite “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1). Summary judgment is therefore appropriate when the non-moving party fails to rebut by making a factual showing that is “sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

Under Rule 56 of the Federal Rules of Civil Procedure, the court must draw “all justifiable inferences” in favor of the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The court must decide “not whether ... the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Id. at 252, 106 S.Ct. 2505. If [475] the non-moving party has produced more than a “mere scintilla of evidence” demonstrating a genuine issue of material fact, then the court may not credit the moving party’s “version of events against the opponent, even if the quantity of the [moving party’s] evidence far outweighs that of its opponent.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992).

III. DISCUSSION

“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the Constitution and the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The plaintiff asserts both an excessive force claim against Officer Ammary and a failure-to-train claim against the City of Allentown. I will address each in turn.

a. Claim of Excessive Force Against Officer Ammary

The plaintiff alleges that the use of the Taser on a fourteen-year-old girl during an arrest, as well as Officer Ammary’s decision to shoot the Taser where he did, are evidence that the force used was “excessive.” The use of excessive force during an arrest is a cognizable constitutional violation under the Fourth Amendment. Bell v. Wolfish, 441 U.S. 520, 534 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The Fourth Amendment provides, “The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated.” ²⁵ An arresting officer is justified in using “substantial force” as part of the arrest when the person is convicted of the crime. Nelson v. Jashurek, 109 F.3d 142, 146 (3d Cir.1997). The use of force beyond substantial force during the arrest goes to the question of whether the seizure of the person itself was reasonable. See Kopec v. Tate, 361 F.3d 772, 776 (3d Cir.2004).

Reasonableness is evaluated from the perspective of a reasonable officer on the scene. Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir. 2004) (citing Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Not every push or shove amounts to unreasonableness even if found to be unnecessary later.²⁶ Id. The reasonableness inquiry must recognize that “police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving ...” Id. at 396-97, 109 S.Ct. 1865. The inquiry is objective and does not take into account the officer’s subjective bad faith or ill-will. Id. at 399, 109 S.Ct. 1865.

[476] “[Reasonableness under the Fourth Amendment should frequently remain a question for the jury.” Abraham v. Raso, 183 F.3d 279, 290 (3d Cir.1999). Summary judgment may be possible, however, if the officer’s use of force was objectively reasonable under the circumstances after all factual disputes have been resolved in favor of the plaintiff. Id. The use of a Taser during an arrest, especially when the suspect is resisting arrest, may be reasonable. See Brown v. Cwynar, 484 FedAppx. 676, 681 (3d Cir.2012) (noting how the use of Taser on a suspect resisting arrest is not inherently “excessive force”).²⁷ Nonetheless, “the deployment of a taser ... remains a relatively serious use of force.” I ekes v. Borough of Bedford, 807 F.Supp.2d 306, 323 (W.D.Pa.2011).

How much force is reasonable in effectuating an arrest is based on- the “totality of the circumstances,” including: 1) the severity of the crime at issue, 2) the immediate threat to the safety of the officers or others that the suspect poses, 3) whether the suspect is resisting or evading arrest, 4) how “violent or dangerous” the suspect is, 5) the “duration” of the force, 6) whether the force was used in making an arrest, and 7) whether the suspect might be armed, and 8) the number of people with whom the police must contend. Graham, 490 U.S. at 396, 109 S.Ct. 1865 (citing Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)); Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.1997).

i. Collateral Estoppel Via Ms.

Wilson’s Adjudication

The defendant argues that the plaintiff is estopped from arguing that Officer Ammary acted improperly in his initial contact with Ms. Wilson because she was adjudicated delinquent on the charges of disorderly conduct, failure to disperse, and resisting arrest.²⁸ In Pennsylvania, [477] “summary judgment may be granted in a civil proceeding based upon a guilty plea in a criminal case if the operative facts in the criminal case are identical to those that would be litigated in the civil case.” Linnen v. Armainis, 991 F.2d 1102, 1105 (3d Cir.1993) (discussing Commonwealth Dep’t of Transp. v. Mitchell, 517 Pa. 203, 535 A.2d 581, 585 (1987)). The same is true under federal law. See Haring v. Prosise, 462 U.S. 306, 316-317, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983) (holding that a guilty plea entered in a state criminal proceeding would not bar a subsequent § 1983 action when the later case addressed issues neither actually litigated nor necessary to support the judgment). “Reasonable doubt as to what was decided by a prior judgment should be resolved against using it as an estoppel.” Gregory v. Chehi, 843 F.2d 111, 121 (3d Cir.1988) (quoting Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir.1970)).

The record does not offer the facts on which the juvenile court relied to make its decision. In adjudicating Ms. Wilson, the juvenile court entered an Order without much explanation of its factual or legal findings.²⁹ For this reason alone, I am disinclined to prevent the plaintiff from using facts about the initial contact with Officer Ammary’s conduct.³⁰

In addition, a conviction for resisting arrest does not necessarily preclude an arrestee from recovering damages on a § 1983 excessive force claim. See Nelson v. Jashurek, 109 F.3d 142, 145-46 (3d Cir.1997); Domitrovich v. Monaco, No. 2:08evl094, 2010 WL 3489137, at *7 (W.D.Pa. Sept. 1, 2010) (finding that conviction foreclosed false arrest and malicious prosecution claims but not excessive force claim). Even if a suspect had been combative at the time of arrest, an excessive force claim would not necessarily be precluded. See Garrison v. Porch, 376 Fed.Appx. 274, 278 (3d Cir.2010) (“A reasonable jury could find that, even considering Garrison’s initial behavior which constituted a simple assault, Porch used an unreasonable amount of force in arresting him, and in doing so violated his constitutional rights.”).³¹ The basis for Ms. Wilson’s arrest is separate from the manner in which Officer Ammary carried out the arrest. This is why I previously dismissed the false arrest claim but allowed the excessive force claim to go forward.³²

[478] The plaintiff is not estopped from presenting evidence regarding Officer Am-mary’s conduct during the initial stop nor from arguing that this conduct constituted excessive force.³³ However, she cannot argue that her arrest was unwarranted or invalid and cannot collaterally attack her adjudication. I have not found her arguments pertaining to this motion to attack the validity of her actual arrest but instead to challenge the manner by which Officer Ammary arrested her.

ii. Video Evidence Does Not Resolve Factual Disputes

The surveillance video showing Ms. Wilson’s tasing has been submitted to the court as part of this motion. Both parties point to video of the Mr. Wilson’s arrest as being dispositive of facts in this case. The surveillance camera taping the incident, however, only captured part of the arrest. It had panned to another area of the high school grounds during the initial contact between Mr. Wilson and Officer Ammary and returned to the location of the incident when they were halfway through their encounter. The video shows the two struggling against a parked car and then Officer Ammary pulling away. He then tasered Ms. Wilson. This is captured on video. The video continued to focus on the scene until just after Ms. Wilson was taken away in an ambulance.

Because the video only captures part of the incident, it does not resolve one way or the other facts being disputed regarding the excessive force claim. The events leading to the struggle against the parked car are important to the excessive force analysis because they help show the context of the arrest. The context of the arrest—how many students were present during the initial contact between Ms. Wilson and Officer Ammary, whether Ms. Wilson’s behavior in responding to Officer Ammary’s request to “move along” threatened his safety or that of those around her, and what other events were happening during their initial contact—is important to the excessive force claim. As I found in deciding the motion to dismiss, the video evidence does not necessarily resolve the facts that remain in dispute.

iii. Outstanding Material Factual Disputes

Several facts in dispute are material to the excessive force analysis.³⁴ First, the plaintiff and defendant offer differing accounts of what was happening on school grounds when Officer Ammary initially made contact with Ms. Wilson. Officer Ammary claims that there were large groups of students gathering on school grounds near where he approached Ms. Wilson.³⁵ He claims that these students [479] appeared to be ready to fight.³⁶ Ms. Wilson, however, recounts that school dismissal as being a little louder than usual but not “too much out of the ordinary.”³⁷ She did not see any large groups gathering nor knew of students planning to fight.³⁸ These facts spedk to the possible threat of safety to the officer and others at the time of the arrest, along with the number of people with which Officer Ammary would need to contend.³⁹

Second, the plaintiffs account of her behavior during her struggle with Officer Ammary differs from that of Officer Am-mary’s recounting of this struggle.⁴⁰ Ms. [480] Wilson claims that she was pushing Officer Ammary’s arm off of her chest because she was unable to breathe.⁴¹ Officer Ammary, however, indicates that her actions were simply ones of defiance. He claims she struck him several times, including in the face.⁴² Ms. Wilson denies striking him or at least doing so intentionally.⁴³ The video does show part of the struggle between them. However, this graphic depiction could be viewed either way. Essentially, this fact comes down to the credibility of Ms. Wilson and Officer Ammary. Which account is more accurate would be a question for a jury to answer. These facts are important to determining whether a threat of safety was posed to Officer Ammary, how dangerous Ms. Wilson appeared to be, and whether these actions are what Officer Ammary viewed as her resisting arrest.⁴⁴

Third, it is disputed what types of warnings were given to Ms. Wilson before force was applied by Officer Ammary and whether Ms. Wilson was actively resisting these commands at the time she was tased. Whether warnings were given prior to tasing is important to showing whether this use of force was appropriate. See Brown v. Cwynar, 484 Fed.Appx. 676 (3d Cir.2012) (use of a Taser on plaintiff during arrest not excessive force after officer was called to store to deal with a “disruptive customer” and plaintiff/customer was non-complaint after several requests by officer to stop); Ickes v. Borough of Bedford, 807 F.Supp.2d 306, 313, 324 (W.D.Pa.2011) [481] (finding that arresting officer’s tasering of a handicapped individual was appropriate after the plaintiff was warned that he might be tasered and the plaintiff responded, “Go ahead and taser me.”).⁴⁵

Officer Ammary claims he gave several orders to disperse to Ms. Wilson and then gave her warnings to cease her behavior.⁴⁶ Ms. Wilson claims no such warnings were given.⁴⁷ If they were, she was unable to hear them.⁴⁸ Ms. Wilson also testified that she stopped resisting after Officer Am-mary let her go from his hold.⁴⁹ She claims she put her hands up when Officer Ammary stepped away from her.⁵⁰ Officer [482] Ammary claims she did not have her hands up until he tasered her.⁵¹ Whether Ms. Wilson did comply or not with Officer Am-mary’s orders and was actively resisting arrest at the time she was tased are factual questions which speak directly to the Graham and Sharrer factors.

Fourth, Ms. Wilson and Officer Ammary offer different accounts of how Ms. Wilson was treated after the tasing. Ms. Wilson claims she was ordered to roll onto her stomach so that she could be handcuffed, further pushing the Taser barbs into her stomach and groin.⁵² Officer Ammary claims she remained on her side.⁵³ The video does not have sound, so it is unclear what was said to Ms. Wilson. Another person also blocked the view of Ms. Wilson being handcuffed so it is unclear how that event transpired. She is at one point seen on her stomach, but it is unclear whether she rolled into this position by her own volition or whether she was ordered to do so. If she was ordered to roll on her stomach and remain in this position, a reasonable jury could conclude that this order was force beyond what was needed.⁵⁴

Lastly, the parties dispute where Ms. Wilson’s messenger bag was placed at the time she was tased. This fact is important to understanding whether Officer Am-mary’s tasing Ms. Wilson in her groin was “excessive” under the circumstances. Officer Ammary claims her messenger bag was in front of her, making it difficult.for him to aim the Taser higher on her body.⁵⁵ Ms. Wilson claims that the bag was on her back and that Officer Ammary had no obstruction in aiming higher on her body.⁵⁶

Given that several material facts are genuinely disputed, summary judgment would not be appropriate as to the plaintiff s excessive force claim.⁵⁷

iv. Qualified Immunity

Even if material facts remain in dispute, the defendants argue that the excessive force claim against Officer Ammary should be barred based on the doctrine of qualified immunity. Qualified immunity is intended to shield government [483] officials performing discretionary functions, including police officers, “from liability from civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”⁵⁸ Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A defendant has the burden to establish that he is entitled to qualified immunity. See Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n. 15 (3d Cir.2001).

Typically, the issue of qualified immunity should be decided early in the litigation. “Because qualified immunity is ‘an immunity from suit rather than a mere defense to liability ... it is effectively lost if a case is erroneously permitted to go to trial.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis and quotation marks omitted)). However, “a decision on qualified immunity will be premature when there are unresolved disputes of historical fact relevant to the immunity analysis.” Curley v. Klem, 298 F.3d 271, 278 (3d Cir.2002). The Third Circuit has made clear that “a qualified immunity determination must be made in light of the specific factual context of the case.” Thomas v. Independence Township, 463 F.3d 285, 289 (3d Cir.2006). Qualified immunity, however, may be raised again as a defense after the disputed issues of fact are resolved.⁵⁹

A ruling on qualified immunity requires a two-factor inquiry: 1) a court must consider whether the facts alleged show that the officer’s conduct violated a constitutional right when viewed in the light most favorable to the plaintiff; and 2) a court must determine that that right was clearly established. Kopec v. Tate, 361 F.3d 772, 776 (3d Cir.2004) (citing Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

Viewing the facts in the light most favorable to the plaintiff, a jury could conclude that Officer Ammary used excessive force when arresting Ms. Wilson.⁶⁰ The [484] facts presented in the record thus far also do not clearly establish that every reasonable officer would have used the level of force employed by Officer Ammary in making the arrest of Ms. Wilson, a minor.⁶¹

The second factor requires a determination of “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Kopec, 361 F.3d at 776 (quoting Saucier, 533 U.S. at 202, 121 S.Ct. 2151) (quotation marks omitted).⁶² The defendants claim that qualified immunity is appropriate because Officer Ammary could not have known that the use of a taser device against an assaultive suspect, who had struck him in the face, would be a violation of Ms. Wilson’s rights. This inquiry, however, would not be whether the use of a Taser on a combative person was appropriate but whether the use of a Taser on a combative minor was appropriate. No case law cited by the parties speaks directly to this issue, and I have not found case law in this Circuit that is directly on point.⁶³

[485] The Third Circuit has interpreted the second inquiry broadly. Kopec, 361 F.3d at 778 (quoting Burns v. County of Cambria, 971 F.2d 1015, 1024 (3d Cir.1992)). If no case directly speaks to the legality of the officer’s conduct, the challenged conduct would need to be such that “reasonable officers in the defendants’ position at the relevant time could have believed, in light of what was in the decided case law, that their conduct was lawful.” Giuffre v. Bissell, 31 F.3d 1241, 1255 (3d Cir.1994) (quoting Good v. Dauphin Cty. Social Servs. for Children & Youth, 891 F.2d 1087, 1092 (3d Cir.1989)). “Reasonableness under the second factor [of the qualified immunity analysis] is an issue of law for the district court to determine; however, if there are facts material to the determination of reasonableness in dispute, then that issue of fact should be decided by the jury.” Barton v. Curtis, 497 F.3d 331, 335 (3d Cir.2007) (citing Skarrar v. Felsing, 128 F.3d 810, 826-28, 832 (3d Cir.1997) (citation omitted)). Several facts material to the determination of reasonableness remain in dispute.⁶⁴ These disputes should be resolved by a jury, not the court.

For these reasons, a decision of whether Officer Ammary is entitled to qualified immunity would not be appropriate at this time.⁶⁵ The defendants may raise qualified [486] immunity as a defense after the disputed issues of fact are resolved.

b. Claims Against the City of Allentown⁶⁶

“[A] municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (emphasis in original). Instead, “it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694, 98 S.Ct. 2018. The plaintiff asserts that the City Allentown is liable because it failed properly to train its officers and because its Use of Force Policy was flawed. I will address each theory in turn.

i. Failure to Train Claims⁶⁷

The plaintiff argues that the City of Allentown failed properly to train Officer Ammary in two ways: 1) failing to train him on the differences between ordinary police work and police work in an educational environment, and 2) failing to train him on the proper use of a Taser.⁶⁸ Under § 1983, “[a] municipality may be liable for failing to train its employees if that failure amounts to deliberate indifference” so long as this failure is closely related to the plaintiffs ultimate injuries. A.M. v. Luzerne Cty. Juvenile Detention Ctr., 372 F.3d 572, 582 (3d Cir.2004) (citing City of Canton v. Harris, 489 U.S. 378, 389-90, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).⁶⁹ This “deliberate indifference” satisfies the “policy or custom” element that would make a city liable under § 1983. Canton, 489 U.S. at 389, 109 S.Ct. 1197.

[487] While this type of claim is typically shown through a pattern of constitutional violations, “[a] single constitutional violation can still provide the basis for municipal liability for failure to train, ... but only where the ‘need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights’ that the policymaker’s inaction amounts to deliberate indifference.” Christopher v. Nestlerode, 240 Fed.Appx. 481, 489-90 (3d Cir.2007) (quoting Canton, 489 U.S. at 391, 109 S.Ct. 1197) (quotation marks omitted).⁷⁰ “[T]he unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of violations.” Connick v. Thompson, — U.S. -, 131 S.Ct. 1350,1361,179 L.Ed.2d 417 (2011) (discussing Bd. of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 409, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). One such example would be when a city arms its police with weapons and deploys police into the community to use those weapons on fleeing felons without training on the limits of deadly force. Id. (discussing Canton, 489 U.S. at 390 n. 10, 109 S.Ct. 1197).

As I noted in my decision regarding the defendants’ motion to dismiss, “the use of Tasers in the field is not dissimilar from Canton.” Geist v. Ammary, No. 11-07532, 2012 WL 6762010, at *6 n. 19 (E.D.Pa. Dec. 20, 2012). Under this rationale, the need to train officers in how and when to use a taser gun to subdue a person during arrest could be “so obvious” and “highly predictable” such that a showing of repeated constitutional violations may be unnecessary. See id. at *7.

“That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer’s shortcomings may have resulted from factors other than a faulty training program.” Canton, 489 U.S. 378, 390-91, 109 S.Ct. 1197 (1989). In determining whether a training program is adequate, a court must look to what tasks particular officers must perform. Canton, 489 U.S. at 390, 109 S.Ct. 1197. The Third Circuit has outlined three elements a court should consider in determining whether a municipality’s failure to train amounts to deliberate indifference: 1) whether municipal policymakers know that employees will confront a particular situation; 2) whether the situation involved a difficult choice or a history of employee mishandling; and 3) whether the wrong choice by an employee will frequently cause deprivation of constitutional rights. See Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir.1999).⁷¹

1. Failure to Train as an Officer in an Educational Setting

The plaintiff argues that the need to train Officer Ammary as a School Resource Officer (SRO)—a police officer [488] working in a school setting—was “so obvious” that a pattern of constitutional violations would not be necessary for the City to be liable under Monell.72 Genuine disputes of material fact remain regarding whether the training provided to Officer Ammary and other SROs was adequate.

Testimony provided by Officer Ammary and Police Chief Hanna raise genuine questions about whether city policymakers knew that Officer Ammary and other SROs would consistently need to contend with large crowds of unruly teenagers. Police Chief Joseph Hanna testified during his deposition that seven SROs were placed in both high schools and middle schools in the Allentown area.⁷³ He recognized that these officers need special skills to work with juveniles.⁷⁴ Officer Ammary, too, admitted that juveniles behave differently than adults.⁷⁵ He testified that students were typically less compliant, requiring him to “escalate the commands” related to the use or threat of force.⁷⁶ Officer Ammary was the only police officer assigned to the high school.⁷⁷ He testified that “managing the student body, being there as a presence and as an assist to the administration and the security officers” was a part of his job as an SRO.⁷⁸ Half of his time was spent “dealing with students” while the other half was spent investigating crimes.⁷⁹ He explained that fights involving gangs or weapons were common occurrences at dismissal.⁸⁰ Officer Ammary would report information about these incidents to his supervisor.⁸¹

[489] Nonetheless, the only training Officer Ammary received when he became an SRO was to shadow another SRO.⁸² Chief Hanna was aware of specialized training for officers through the National Association for School Resource Officers (NAS-RO).⁸³ NASRO provided a 40-hour course to SROs, which explained “the role of a school resource officer in the school setting, what some of the legal parameters are [of school resource officer conduct,] and what they can do and what they can’t do.”⁸⁴

Allentown did not provide this training, however, before placing its officers in a school setting or at any time thereafter.⁸⁵ Officer Ammary testified that NASRO training had been discussed, but he was never afforded this training due to budgetary constraints.⁸⁶ The plaintiffs expert, however, found that the City of Allentown had a budget surplus of $666, 830.00 in [490]*4902011—the year Officer Ammary became an SRO at the high school level.⁸⁷ This evidence alone raises a genuine dispute over Officer Ammary’s lack of training, which would be material to the analysis of whether the City was “deliberately indifferent” to potential constitutional violations.⁸⁸

Evidence in the record also suggests a history of possible mishandling of students at dismissal which could amount to constitutional violations of students’ rights. It was not uncommon for Officer Ammary and other officers to restrain certain students at dismissal simply to run background checks or ensure they didn’t have outstanding warrants.⁸⁹ These actions served to “set[ ] the tone that police aren’t messing around, that they mean business.”⁹⁰ From these facts, a jury could find that it was foreseeable that a student could be injured during an arrest by a SRO who was inadequately trained in controlling crowds of teenagers and that the training that was offered to SROs was inadequate in these respects.⁹¹

2. Failure to Train on Proper Use of Tasers

The plaintiff also alleges that Allentown police officers were not properly trained in how to use Tasers because: 1) they were not properly trained on how to [491] aim the Tasers, and 2) they were not trained to never aim the Taser at “sensitive” areas such as the groin.⁹²

There is a' genuine dispute of material fact as to whether the Allentown police department’s training on how to aim the Taser was appropriate. Allentown police began using Tasers in July 2011, just before Ms. Wilson was tased.⁹³ Officer Am-mary testified that he was trained to aim the laser at the quadrant of the person’s body he hoped to hit.⁹⁴ Lieutenant Reinik, the Taser instructor for the Allentown Police Department, confirmed that this was the way Ammary and other officers were trained to use Tasers.⁹⁵ This training was consistent with what Officer Ammary testified he did when he tased Ms. Wilson, striking her in the groin. He pointed the Taser at her “lower torso” without using the lights.⁹⁶ The plaintiffs expert, however, indicated that officers can more accurately aim a Taser like the one used by Officer Ammary in order to better predict where the probes will hit. Lieutenant Reinik confirmed that police could better predict where the bottom probe might hit.⁹⁷ Yet, when he explained how he trained officers in aiming the Taser, it was not clear that this information regarding the bottom probe placement was relayed to officers.⁹⁸

There is also a genuine dispute of material fact as to whether Officer Ammary was advised not to target sensitive areas, specifically the groin and back.⁹⁹ Lieutenant Reinik confirmed that he warned officers to avoid the heart and head but did not specifically warn officers to avoid the groin and back.¹⁰⁰ In fact, he instructed officers to deploy the Taser so that bottom probe hit “below the belt” and to aim for the “middle of the back.”¹⁰¹ Yet, he also [492] testified that one of the training slides he gave officers told them not to “intentionally target genitals.”¹⁰² Officer Ammary testified that he was only warned not to aim for the face, head, throat, or heart.¹⁰³

According to the plaintiffs expert, both of these practices contradict known risks about Tasers at the time the officers were trained.¹⁰⁴ TASER® warned that a probe hitting the genital area would cause serious injury.¹⁰⁵ The Allentown Police Department began using Tasers later than many other districts in the country.¹⁰⁶ Under these circumstances, a jury could find that the department should have known of the potential risks Tasers posed and that the City was “deliberately indifferent” to the risks improper training could pose.

This evidence by the plaintiff raises genuine issues of fact about whether the department’s Taser training was adequate. A reasonable jury could find that had the training been adequate the injury to Ms. Wilson could have been avoided.¹⁰⁷

ii. Defective Use of Force Policy

The plaintiff claims that the Allentown Police Department’s Use of Force Policy was unclear and insufficiently offered officers guidance on when to use force and what level of force was appropriate.¹⁰⁸ Specifically, the policy does not explain what types of force are appropriate when officers are dealing with children and teenagers.¹⁰⁹ The plaintiff also attacks [493] whether the defendants’ policy on Taser usage is appropriate. This claim overlaps with the plaintiffs failure to train officers on the appropriate use of Tasers.

The Use of Force Policy states: “Department members shall use only the amount of force which is necessary and reasonable to control the situation, effect an arrest, overcome resistance to arrest, or defend themselves or others from harm. No officer will use unreasonable or excessive force toward any person.”¹¹⁰ It goes on to say: “officers shall use only that level of force on the force continuum that is reasonably necessary to de-escalate the incident and bring it under control.”¹¹¹ The Policy indicates that the continuum of force moves from officer presence to verbal control to physical control to less lethal weapons to the use of a canine and then to deadly force.¹¹²

It goes further to say that “[w]hen the use of force is necessary, the degree of force that is employed should be in direct relationship to the amount of resistance employed by the person or the immediate threat the person poses to the officer or others.”¹¹³ The Use of Policy states that officer may use Tasers “against violent crowds, violent suspects not armed with firearms, mentally disturbed person[s] exhibiting aggressive behavior, and in support of tactical operations.”¹¹⁴

The record raises questions of material fact about whether the Use of Policy or the Taser training adequately addressed when the use of a Taser was an appropriate use of force. Lieutenant Reinik agreed that the Taser training taught officers “how to use [the Taser] but not when” to use the Taser.¹¹⁵ Lieutenant Reinik and Chief Hanna admit to relying almost entirely on TASER®’s materials in preparing their training program.¹¹⁶ Guidance put out by the Department of Justice warns against police departments relying heavily or solely on the materials provided [494] by TASER®, the manufacturer, in its training of officers.¹¹⁷ The Department of Justice recommends that police departments incorporate their Taser training into use of force policies.¹¹⁸

From the record, there is a genuine dispute of material fact about whether the Allentown Police Department did integrate the Taser training into its use of policy adequately. It is unclear who developed the Department’s Taser Policy and whether already known risks about Tasers were considered in crafting the policy.¹¹⁹ Officer Hanna, the director of the police academy, testified that he “did not have any part in the creation or the development or authoring of [the Taser or use of force] policies.”¹²⁰ Lieutenant Reinik also said he was not consulted when the policy was put into place.¹²¹ In addition, Officer Am-mary was trained on the Use of Force Policy, which supposedly discussed use of a Taser. This training, however, was offered six months before the police department was approved for the use of Tasers and six months before the Taser Policy was added to the Use of Force Policy.¹²²

[495] Furthermore, there remains a question of whether the training materials and the Use of Force Policy provided officers with appropriate guidance on when the use of a Taser on a minor was appropriate. Lieutenant Reinik could not remember if the Taser training itself addressed when the use of a Taser on a minor was appropriate.¹²³ The training simply said “Avoid using on children” without much further explanation.¹²⁴ When asked about the Use of Force policy’s guidance on juveniles, Officer Ammary testified that the officers’ priority was not on “age or size.”¹²⁵ Whether the use of a Taser on a child was appropriate was left to the discretion of the officer.¹²⁶ While the department’s Ta-ser training materials do advise officers not to use the Taser on “small children,” this phrase is ambiguous and not well-defined. Officer Ammary himself indicated that he would not Taser a child of age eleven but thought tasing a fourteen-year-old was appropriate.¹²⁷ Why one was appropriate and not the other was unclear. Given that seven officers were placed in City schools with Tasers, the department’s lack of guidance on what type of force may be used on children and teenagers and lack of guidance on when tasing juveniles was appropriate could amount to “deliberate indifference.”

There also remains a genuine dispute of fact about whether the Use of Force Policy’s lack of guidance on when to use a * Taser encouraged officers to overuse Ta-sers as a tool of force.¹²⁸ The defendant’s [496] expert “found no evidence that [the Allentown Police Department] encouraged the use of [Conducted Electrical Weapons (a.k.a Tasers) ] in all situations.”¹²⁹ However, the Taser firing record for the Taser used in this incident offers a different picture. The Taser used in the incident with Ms. Wilson was fired close to 150 times between the officers’ Taser training in July 2011 and the incident with Ms. Wilson at the end of September 2011.¹³⁰ Resolving all disputes in favor of the plaintiff, a jury could find that the Use of Force Policy as it related to Taser usage was inadequate in guiding officers on when it was appropriate to use the Taser as a tool of force.¹³¹

Evidence in the record also shows that supervisors in the, Allentown Police Department were “deliberately indifferent” to the risks this lack of guidance posed.¹³² The Use of Force Policy itself required the Assistant Chief of Police to review these incidents.¹³³ Whether this sort of review actually occurred is unclear.¹³⁴ Despite [497] numerous incidents which had caused serious injuries to tased persons, the Police Department did not amend or revise the Policy to better guide the officers in the use of their Tasers.¹³⁵ For example, one suspect was hit in the back of the head by a Taser probe causing him to go into a seizure.¹³⁶ This lack of review and revision could be viewed as showing “deliberate indifference” on the part of the defendants, after all factual disputes are resolved in favor of the plaintiff.¹³⁷

Resolving all of these disputes in favor of the plaintiff, a jury could find that the Police Department’s Use of Force policy was deficient and that this deficiency caused Ms. Wilson’s injury, making the City liable under Monell.

IV. CONCLUSION

Genuine disputes of material fact remain on both the claim against Officer Ammary and the claim against the City of Allentown. For the reasons stated above, I will deny the defendants’ motion for summary judgment.¹³⁸

An appropriate Order follows.

[498] ORDER

AND NOW, this 21st day of August, 2014, upon consideration of defendants’ motion for summary judgment (Doc. No. 65) and all responses thereto, it is hereby ORDERED that the motion is DENIED, as explained in the accompanying memorandum.

Footnotes

8

. Officer Ammary reported that he first used verbal commands to disperse the crowd by telling them to "keep walking” and saying "let's go, have a nice day.” See Affidavit of Probable Cause, Doc. No. 67, Ex. D; Jason Ammary Deposition, Doc. No. 67, Ex. C at 152. He and the school security officers told the crowds seven times to disperse before receiving compliance from the majority of the group. Affidavit of Probable Cause, Doc. No. 67, Ex. D. One student, however, stopped and "bladed his body toward [Officer Ammary] while clenching both fists, and stared directly at [Officer Ammary].” See id.; Jason Am-mary Deposition, Doc. No. 67, Ex. C at 141— 42. This student was told he was under arrest and placed in handcuffs behind his back without incident. See Affidavit of Probable Cause, Doc. No. 67, Ex. D; Jason Ammary Deposition, Doc. No. 67, Ex. C at 141-42.

9

.What happened prior to the interaction between Officer Ammary and Ms. Wilson is somewhat disputed. After the student was placed under arrest, Officer Ammary claimed that some students "continued to walk slowly and even stop[ped] to check their cellular telephones for text messages.” Affidavit of Probable Cause, Doc. No. 67, Ex. D; Jason Ammary Deposition, Doc. No. 67, Ex. C at 138, 146. Officer Ammary claims he directed the remaining students in the roadway to move to the sidewalks or “face arrest.” Affidavit of Probable Cause, Doc. No. 67, Ex. D. He reported that Ms. Wilson and two unidentified females "walked slowly and in the middle of the street uttering profanities ... to incite the crowd of students.” Id.; Jason Ammary Deposition, Doc. No. 67, Ex. C at 146-47.

Ms. Wilson claims that she was walking toward the sidewalk, in compliance with Officer [472] Ammary’s orders to disperse when he first approached her. Keshana Wilson Deposition, Doc. No. 67, Ex. 2 at 126. She claims she was in the street because she needed to cross it. Id. Ms. Wilson claims that she did not see Officer Ammary Wilson until he grabbed her arm. Id. at 133. She heard the security officers telling the crowds to disperse but claims she did not hear Officer Ammary tell her to leave the street. Id. She claimed it was loud when the orders were being given so she was not aware she might be facing arrest. Id. Officer Ammary claims that she saw him and was facing his direction when he approached her. Jason Ammary Deposition, Doc. No. 67, Ex. C at 13.

Why Officer Ammary first approached Ms. Wilson is unclear. In his police report, Officer Ammary stated he "approached Wilson from behind, grabbed both arms, and notified her of being under arrest.” Affidavit of Probable Cause, Doc. No. 67, Ex. D. In his report, Officer Ammary also stated that earlier that morning, he had "observed and overheard Wilson stating to two other females that she was going to 'fuck her up after school and didn't care about the police.’ ” Id. He reported that he was able to determine the name of the student Ms. Wilson was going to fight. Id.

This differed slightly ¡rom his deposition testimony in which he claimed that he had not intended to arrest Ms. Wilson when he first grabbed her wrist. Jason Ammary Deposition, Doc. No. 67, Ex. C at 155-56, 161. He also testified that he had not met Ms. Wilson prior to the incident in question nor did he know who she was. Id. at 116, 157 ("Q: It was coincidental that she was the one that you had a report on earlier; correct? A. Correct.”). He had been aware that she might be involved with a local gang from other investigations with which he was involved. Id. at 116-121.

13

. How this struggle played out is unclear from the record. According to Officer Am-mary, Ms. Wilson then rotated around to face him. Affidavit of Probable Cause, Doc. No. 67, Ex. D. He claims that she struck him underneath his chin sending his head backwards and also struck him "with several elbows to the sides of [his] head and body.” Id. See Jason Ammary Deposition, Doc. No. 67, Ex. C at 173-82. At that point, Officer Am-mary considered her a "mid-level assailant.” Affidavit of Probable Cause, Doc. No. 67, Ex. D; Jason Ammary Deposition, Doc. No. 67, Ex. C at 166, 181, 190. At that time, he pushed away from her and stepped back so that he could deploy his Taser. Affidavit of Probable Cause, Doc. No. 67, Ex. D; Jason Ammary Deposition, Doc. No. 67, Ex. C at 183-85.

Ms. Wilson admits trying to turn around to ask him why she was being arrested. Kesha-na Wilson Deposition, Doc. No. 67, Ex. 2 at 137-38. According to Ms. Wilson, she was then "flipped around” and that Officer Am-mary "put his forearm on [her] neck.” Id. at 138. She claims she began to struggle with him because she has asthma and had difficulty breathing. Id.

18

. What happened while Ms. Wilson was on the ground is also unclear. Officer Ammary claimed he advised her at that time to "not move,” “stop resisting,” and to "stay on the ground." Affidavit of Probable Cause, Doc. No. 67, Ex. D. See Jason Ammaiy Deposition, Doc. No. 67, Ex. C at 195. He reported that she complied with these commands. Affidavit of Probable Cause, Doc. No. 67, Ex. D. One of the security officers present placed handcuffs on Ms. Wilson, at the direction of Officer Ammary. Id.; Jason Ammary Deposition, Doc. No. 67, Ex. C at 199.

Ms. Wilson claims that she had asked Officer Ammary for her asthma inhaler while she was on the ground but that he denied her request and ignored her. See Keshana Wilson Deposition, Doc. No. 67, Ex. 2 at 146, 164-65. Ms. Wilson never used her inhaler but claims she did not have an attack because she was able to calm her breathing after 20 minutes. Id. at 169, 172. Her medical record shows that Ms. Wilson did have asthma. See St. Luke's Emergency Department Record for Keshana Wilson, September 29, 2011 at 3:30 p.m., Doc. No. 65, Ex. Z (stating that Ms. Wilson was prescribed asthma medication). Ms. Wilson also claims that Officer Ammaiy made comments about her economic status while laughing when she was handcuffed on the ground. See Keshana Wilson Deposition, Doc. No. 67, Ex. 2 at 146, 163. She claims that he made a comment in the ambulance that Ms. Wilson’s “ugly face ruined [his] lunch.” Id. at 168.

22

. Compl., Doc. No. 1 at ¶ 16. See also St. Luke’s Emergency Department Record for Keshana Wilson, September 29, 2011 at 3:30 p.m., Doc. No. 65, Ex. Z (stating that "Pt. complaining of pain at taser sight [sic]”); City of Allentown Paramedics record for Keshana [474] Wilson on September 29, 2011, Doc. No. 65, Ex. BB (stating that Ms. Wilson was complaining of pain around the barb wounds). The doctor had indicated that skin infection might be possible as a result of the Taser wounds. See St. Luke’s Emergency Department Record for Keshana Wilson, September 29, 2011 at 3:30 p.m., Doc. No. 65, Ex. Z. Ms. Wilson claims that she continues to have nightmares as a result of the incident. See Keshana Wilson Deposition, Doc. No. 67, Ex. 2 at 198. She claims kids at school have teased her about the incident and have called her "taser bitch.” Id. at 199-201. However, she has not sought psychological treatment about the teasing or nightmares. Id. at 200.

26

. The defendants argue that their motion should be granted because Ms. Wilson was not injured by the tasing. While a juiy might disagree with the defendants’ assessment of whether Ms. Wilson suffered injuries, this argument is moot. This is the same argument I rejected in the defendants’ motion to dismiss. See Memorandum on Defendants’ Motion to Dismiss, Doc. No. 35 at 12. "[T]he absence of a physical injury does not necessarily signify that the force used was not excessive.” Gulley v. Elizabeth City Police Dep't, 340 Fed. Appx. 108, 110 n. 2 (3d Cir.2009) (discussing Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.1997)). "Rather, it is simply one of the circumstances to be considered under the objective reasonableness standard set forth in Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).” Id.

27

. See also Patrick v. Moorman, 536 Fed. Appx. 255, 259 (3d Cir.2013) (tasing a fleeing bank robber who was resisting arrest was not excessive force); Woods v. Grant, 665 F.Supp.2d 438, 446 (D.Del.2009) (granting summary judgment in favor of defendant on plaintiff’s claim that tasering amounted to excessive force); Wargo v. Municipality of Monroeville, PA, 646 F.Supp.2d 777, 784 (W.D.Pa.2009) (finding that use of a Taser did not constitute excessive force when an armed man who was suicidal refused to comply with officer’s orders); Schumacher v. Halverson, 467 F.Supp.2d 939, 951-52 (D.Minn.2006) (use of a Taser in arresting plaintiff was reasonable when plaintiff was arrested for DWI chárge at night and officer did not know whether he was armed); McKenney v. Harrison, 635 F.3d 354, 360 (8th Cir.2011) (finding that the use of a Taser in arresting the plaintiff for misdemeanors was reasonable when plaintiff made a sudden movement toward a window which officers could have reasonable interpreted as an "active attempt to evade arrest by flight” and officer warned plaintiff she might be tased); Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir.2004) (use of a Taser on belligerent arrestee during traffic stop not excessive force when plaintiff repeatedly failed to follow officer's directives and plaintiff resisted arrest).

28

. She was also adjudicated delinquent on the charge of walking on or along the highway, a summary offense. Failure to disperse upon an official order and resisting arrest are misdemeanors in the second degree. Disorderly conduct is a misdemeanor in the third degree. See Order Adjudicating Keshana Wilson (Oct. 20, 2011), Doc. No. 65, Ex. DD.

Pennsylvania’s Failure to Disperse statutes states:

Where three or more persons are participating in a course of disorderly conduct which causes or may reasonably be expected to cause substantial harm or serious inconvenience, annoyance or alarm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a misdemeanor of the second degree.

18 Pa.C.S. § 5502.

[477] Pennsylvania’s resisting arrest statutes states:

A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duly, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

18 Pa.C.S. § 5104.

36

.See Jason Ammary Deposition, Doc. No. 67, Ex. C at 79, 124, 128, 132, 134 (claiming he received reports from an unknown source that rival gangs would fight after school); Affidavit of Probable Cause, Doc. No. 67, Ex. D ("Security personnel advised that several groups of students consisting of rival gangs were attempting to fight.”). Officer Ammary also claims that he had received information that Ms. Wilson might be involved in this fight. Jason Ammaiy Deposition, Doc. No. 67, Ex. C at 86-87, 93. In his police report, Officer Ammary stated that earlier that morning, he had "observed and overheard Wilson stating to two other females that she was going to ‘fuck her up after school and didn't care about the police.’ ” See Affidavit of Probable Cause, Doc. No. 67, Ex. D. He reported that he was able to determine the name of the student Ms. Wilson was going to fight. Id.

However, in his deposition, Officer Ammary testified that he had not met Ms. Wilson prior to the incident in question nor did he know who she was. See Jason Ammary Deposition, Doc. No. 67, Ex. C at 116, 157 ("Q: It was coincidental that she. was the one that you had a report on earlier; correct? A. Correct.”). He had been aware that she might be involved with a local gang from other investigations with which he was involved. See id. at 116-121. This factual inconsistency raises questions about whether Officer Ammary believed Ms. Wilson was a threat to his safety when he first approached her. The resolution of this factual discrepancy would turn on a jury’s estimation of Officer Ammary’s credibility-

40

. It is clear that Ms. Wilson did resist Officer Ammary's hold on her. But Ms. Wilson’s behavior does not dispense with the reasonableness requirement altogether, as I already explained in my memorandum regarding the motion to dismiss in this case. See e.g., Green v. NJ. State Police, 246 Fed.Appx. 158 (3d Cir.2007) (finding that the plaintiff's admission that during the struggle he came "in contact either by striking or kicking two of the officers,” would not, as a matter of logic, necessarily conflict with a finding of excessive force); Gibson v. Mueller, No. 09-6486-NLH-JS, 2012 WL 1079128, at *10 (D.N.J. Mar. 29, 2012) (finding that even where certain facts [480] as alleged in the plaintiff's § 1983 claim contradict facts found in support of the plaintiff's state court conviction, they do not necessarily undermine the plaintiff's allegation in the § 1983 case that the officers used unreasonable force). See also Geist v. Ammary, No. 11-07532, 2012 WL 6762010, at *4-5 (E.D.Pa. Dec. 20, 2012).

The defendants admit that there is a difference in the testimony of Ms. Wilson and Officer Ammary regarding what happened during this struggle, but they argue that they are not material without much explanation of this point. See Defendants’ Brief in Support of Summary Judgment, Doc. No. 65-63 at 10.

44

. The juvenile court did not explain its findings for its adjudication as to Ms. Wilson's resisting arrest charge. It is unclear if her actions during the initial contact between her and Officer Ammary—-in pulling away from him—were the basis for the adjudication or whether her actions during this struggle were the basis for the adjudication. The defendants' own brief claims that it is Ms. Wilson's turning around after having her hands pulled behind her back which Officer Ammary interpreted as her resisting arrest. See Defendants’ Brief in Support of Summary Judgment, Doc. No. 65-3 at 10. The fact that she was adjudicated on the resisting arrest charge but not the assault charges raises a doubt as to which of her actions were considered by the court to be resisting arrest. See Order Adjudicating Keshana Wilson (Oct. 20, 2011), Doc. No. 65, Ex. DD. From what has been presented in. the record, I cannot say for certain that her actions during the struggle were what warranted her adjudication of the charge "resisting arrest.”

45

.See, e.g., Gorman v. Warwick Twp., No. 10-C.V-6760, 2012 WL 1439076, at *5 (E.D.Pa. Apr. 26, 2012) (finding that tasing was reasonable "after repeated entreaties and warnings by the officers and Plaintiff’s continued verbal and physical refusals to comply”); Graver v. Borough of Carlisle, No. 4:CV 05-1206, 2006 WL 1410816 (M.D.Pa. May 19, 2006) (no excessive force when use of taser was consistent with level of resistance and there was no indication police officers applied any gratuitous force); Armbruster v. Marguccio, Civ. No. 05-344J, 2006 WL 3488969 (W.D.Pa. Dec. 4, 2006) (issue of fact whether arrestee was resisting at the time of the first use of taser, but no excessive force for subsequent taser use when officers reasonably believed arrestee was resisting arrest); Buckley v. Haddock, 292 Fed.Appx. 791, 794 (11th Cir.2008) (tasering not an excessive use of force when arrestee did not comply with officer’s orders and after the officer “gave Plaintiff ample warning and opportunity to cease resisting before the deputy resorted [to tasing]."); N.A. ex rel. Ainsworth v. Inabinett, No. 2:05-CV-740 DRB, 2006 WL 2709850, at *6 (M.D.Ala. Sept. 20, 2006) (finding that use of Taser on suicidal teen not excessive after officers gave teen two warnings before using Taser and delayed tasering after each warning "in order to solicit Plaintiff's cooperation”). The use of a Taser on a suspect who is no longer resisting arrest has been found to be unconstitutional. See, e.g., Bultema v. Benzie County, 146 Fed.Appx. 28, 35 (6th Cir.2005); Parker v. Gerrish, 547 F.3d 1, 8-11 (1st Cir.2008) (upholding jury verdict that officer used excessive force in tasing an arrestee who had insulted the officers but also had complied with their requests and did not resist arrest); Casey v. City of Fed. Heights, 509 F.3d 1278, 1282-87 (10th Cir.2007) (use of a Taser and related force against a nonviolent misdemeanant who did not flee or actively resist arrest found to be excessive).

The defendants cite to Nardini v. Hackett, No. Civ.A. 00 CV 5038, 2001 WL 1175130 (E.D.Pa. Sept. 19, 2001), to support their position that the use of the Taser was not “excessive.” In Nardini, the district court granted summary judgment in favor of arresting officers on an excessive force claim after determining that a reasonable jury could not conclude the amount of force applied was objectively unreasonable. Id. at *6-7. I do not find this case to be helpful. In that case, the officers gave the plaintiff two "explicit warnings” that she would be arrested if she did not cease her conduct. Id. at *1. When she continued, they grabbed her arm to arrest her, and she resisted arrest. Id.

57

. The defendants also cite Patrick v. Moorman, 536 Fed.Appx. 255 (3d Cir.2013), and Brown v. Cwynar, 484 Fed.Appx. 676 (3d Cir.2012), to support their motion on the excessive force claim. These cases are distinguishable. Taser cases within the Third Circuit reflect the fact-sensitive nature of any determination of reasonableness of the use of a Taser on a person and do not establish bright-line rules on when the use of a Taser is appropriate. See Reiff v. Marks, 2011 WL 666139, 2011 U.S. Dist. LEXIS 18205 (E.D.Pa. Feb. 23, 2011). In Patrick, the plaintiff was actively fleeing the scene of a bank robbeiy, a far more serious crime.⁵⁷ In Brown, the district court did not find that any material facts were in dispute. 484 Fed.Appx. at 679. See also Brown v. Cuscino, No. 08-1224, 2011 WL 1085892, at *1 (W.D.Pa. Mar. 21, 2011) (“For the reasons that follow, the court will grant Cuscino’s Motion with respect to all federal question claims because there is no issue of material fact in dispute and Cuscino is entitled to judgment as a matter of law.”).

60

.See Shultz v. Carlisle Police Dept., 706 F.Supp.2d 613, 624 (M.D.Pa.2010) (finding that the qualified immunity defense would be unavailable if a jury concluded that the defendants use of a Taser during an arrest was excessive under the circumstances).

The defendants argue that qualified immunity must apply because Ms. Wilson admitted during her deposition that Officer Ammary could have understood her actions as her resisting arrest. See Defendants’ Reply Brief in Support of Motion for Summaiy Judgment, Doc. No. 68, Ex. A at 4. Whether Ms. Wilson could understand that Officer Ammary was acting as a reasonable officer would in the situation is not dispositive of the issue. This is an issue for the jury, not Ms. Wilson. Her agreeing that he could have acted reasonably under the circumstances does not resolve whether the force used was excessive.

The defendants also argue that qualified immunity should apply because Ms. Ammaiy [484] admits she may have hit Officer Ammaiy during their struggle. Id. The defendants point to the video as evidence that she did, in fact, hit him. It is not clear from the video whether she hit Officer Ammary in the way he testified she did. Her testimony during her deposition and during her juvenile adjudication hearing do not clearly resolve the issue as well. See Wilson Juvenile Adjudication Hearing Transcript, Doc. No. 65, Ex. Y at 193; Keshana Wilson Deposition, Doc. No. 67, Ex. 2 at 140.

The defendants also state that "[tjhis conduct would give rise to charges of -simple assault and aggravated assault.” See Defendants’ Reply Brief in Support of Motion for Summary Judgment, Doc. No. 68, Ex. A at 6. According to Ms. Wilson’s Order of Adjudication, this conduct did result in charges of simple assault and aggravated assault. See Order Adjudicating Keshana Wilson (Oct. 20, 2011), Doc. No. 65, Ex. DD. However, Ms. Wilson was not adjudicated on those charges. Id. Even if she had, whether she did so intentionally or because he was improperly holding her and she could not breathe is still a fact in dispute that would affect the analysis of whether the force used was excessive.

61

.For example, in describing Ms. Wilson’s arrest, Officer Ammaiy explained that he had grabbed her and was placing her in handcuffs to issue a citation for walking in the highway. See Jason Ammaiy Deposition, Doc. No. 67, Ex. C at 155-56, 161. Chief Hanna testified that officers typically would only grab people's arms if "effecting an arrest” or "assisting them in some way.” See Joseph Hanna Deposition, Doc. No. 67, Ex. F at 147-48. Whether eveiy reasonable officer would have acted in the same way is a question the juiy should resolve.

In addition, Officer Ammary did not warn Ms. Wilson before tasing her and only allowed several seconds to elapse between un-holster-ing his Taser and deploying it. See Keshana Wilson Deposition, Doc. No. 67, Ex. 2 at 144— 45; Jason Ammaiy Deposition, Doc. No. 67, Ex. C at 186, 190. Whether eveiy reasonable officer would have acted in this way is debatable.

63

. In my research, I found only three cases outside of this Circuit that might be somewhat analogous to this case. In Johnson v. City of Lincoln Park, a district court found that an officer's tasing of a fourteen-year-old high school boy by a school police officer was not excessive. 434 F.Supp.2d 467, 480 (E.D.Mich.2006). The student, who had a histoiy of disruptive behavior, first failed to comply with school officials in handing over a Gameboy he was not permitted to have in school. Id. at 469. The school police then intervened and the student failed to comply with their directives. Id. at 469-470. The student then began to struggle, kick, and bite the officers. Id. at 470. The officer then warned him that he would be tased if he continued to resist; the officer even explained [485] what tasing involved and did a "try fire” to show the student the electrical charge. Id. at 470. The student said "okay” and then continued to resist. Id. The officer then tased him lightly on the back in "dry stun” mode. Id. The student admitted that he was not hurt and instead that the tasing “tickled.” Id. at 478.

In RT v. Cincinnati Public Schools, a district court found that the tasing of a minor at her high school was not excessive. No. I:05cv605, 2006 WL 3833519, at *2 (S.D.Ohio Dec. 29, 2006). School officials called police to the school because the minor was causing a disturbance. Id. The student refused to comply with the officer’s repeated orders and kicked, screamed, and bit the officer when he tried to seize her. Id. The officer then warned her several times that she would be tased if she did not calm down. Id.

In Maiorano ex rel. Maiorano v. Santiago, a district court found that the tasing of a high school student by a school resource officer was not excessive when the tasing was done to break up a gang fight. No. 6:05-cv-107-Orl-19KRS, 2006 WL 2024951, at *10 (M.D.Fla. Jul. 15, 2006). The gang fight in that case occurred on school grounds during the school day and involved 100 students gathering around four teenage girls who were physically fighting. Id. at *1. In that case, the officer only used his Taser on two students after his physical attempts to break up the fight were unsuccessful. Id. at *2.

The factual distinctions in these cases make it difficult for me to determine what kind of legal guidance these cases might offer to an officer in this Circuit.

The defendants cite to Brown and Patrick— both which were decided before the incident—to support their argument. See Brown, 484 Fed.Appx. at 681; Patrick, 536 Fed.Appx. at 259. Neither of these cases speak to the tasing of minors. For this reason, they do not dispose of the issue.

65

. See Wilhere v. Delaware Cnty., CIVA 09-22, 2010 WL 1381664, at *7 (E.D.Pa. Apr. 1, 2010) (denying summary judgment on qualified immunity defense because factual dis7 putes remained about reasonableness of officer’s conduct); Reynolds v. Smythe, 418 F.Supp.2d 724, 735 (E.D.Pa.2006) (denying summary judgment on qualified immunity because factual disputes remained about how the actual incident occurred); Garey v. Borough of Quakertown, No. 12-0799, 2013 WL 3305222, at *6 (E.D.Pa. Jul. 1, 2013) (denying summary judgment on qualified immunity defense because factual disputes about reasonableness of officer’s conduct remained); Shultz v. Carlisle Police Dep’t, 706 F.Supp.2d 613, 624 (M.D.Pa.2010) (denying summary judgment on qualified immunity because fac[486] tual disputes remained about whether a reasonable officer would have acted the same way).

80

. Id. at 23, 75-76. Officer Ammary testified that he was monitoring dismissal "probably 90 percent of the time” and that he was responsible for handling situations that unfolded, as opposed to speaking with teachers or school administrators first. Id. at 72, 74-75. He described these dismissals as "chaotic” with "thousands of students being dismissed all at once.” Id. at 75. He indicated that dismissals have included "stabbings,” “shootings,” "issues with weapons,” and "machete attacks all at the high school levels during dismissals." Id. at 76. Reports of a fight at the school happened more than once a week. Id. at 81. According to Officer Am-mary, a fight between rival gangs had happened near the school two days before the incident with Ms. Wilson. Id. at 82-83. Officer Ammary testified that “a peaceful dismissal” was "generally odd.” Id. at 100.

Chief Hanna also testified that gangs have been an ever-growing problem in Allentown schools since the late nineties. See Joseph Hanna Deposition, Doc. No. 67, Ex. F at 131, 143. See also Jason Ammary Deposition, Doc. No. 67, Ex. C at 102 (indicating that the high school was "having a lot of other issues going on within the hallways with opposing gangs and wearing their colors and their beaded necklaces”).

82

.Officer Ammary testified that his training was "nothing formal.” His training included "|j]ust being transferred to the division,” "[b]eing teamed up with the other resource officers prior to being assigned to a school,” and "[sjhadowing, learning the paperwork system, the court system, et cetera.” See Jason Ammary Deposition, Doc. No. 67, Ex. C at 25. See also id. at 28. Who he shadowed is unclear since he was the only officer assigned to the high school. See id. at 113-14.

Despite the fact that handling crowds of teenagers was a daily occurrence, Officer Ammary never received training in handling crowds beyond “going into bar crowds, rowdy crowds” and the use of force training. Id. at 29. He did not received training on how to handle crowds of minors. See id. at 30.

The defendants offer Officer Ammary's police academy record, educational and training requirements of his position, proof that Officer Ammary completed the required educational training, and a commendation award as evidence of his qualifications and trainings. See Ammary Montgomery County Community College Police Academy record, Doc. No. 65, Ex. B; Ammary Police Officer Appointment Letter from City of Allentown, Doc. No. 65, Ex. C (outlining educational certification requirements for police officer position); Letter from Commonwealth of Pennsylvania Municipal Police Officers' Education and Training Commission to Officer Ammary with certification, Doc. No. 65, Ex. D (dated Aug. 9, 2006); Letter from City of Allentown to Officer Am-mary, Doc. No. 65, Ex. E (certifying that Officer Ammary had passed his agility test and background investigation, dated June 30, 2006); Ammary Award of Commendation Letter, Doc. No. 65, Ex. G (Apr. 17, 2008); Ammary 2010 Defensive Tactics Recertification, Doc. No. 65, Ex. I (Oct. 26, 2010); Am-mary Taser Training Academy Certification, Doc. No. 65, Ex. J (Jul. 8, 2011); Letter from Commonwealth of Pennsylvania Municipal Police Officers' Education and Training Commission to Officer Ammary with certification, Doc. No. 65, Ex. K (dated Aug. 10, 2011); and Ammary Taser Training Academy Certification, Doc. No. 65, Ex. N (Jun. 7, 2013). The defendants, however, do not offer evidence that this training addressed the skills needed for situations working with juveniles or teenagers. While Officer Ammary was given training on gang resistance, this training occurred in 2008. It is unclear what the training involved. See Ammary Gang Resistance Education and Training (GREAT) Program Officer Training Certificate, Doc. No. 65, Ex. F (March 2008).

88

. I will note though that evidence of the surplus would not be necessary for the City to be held liable for a lack of training but adds further support the plaintiff's claim that the City was "deliberately indifferent.” "Financial constraints may not be used to justify the creation or perpetuation of constitutional violations. ...” Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 392, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). See also Craft v. County of San Bernardino, 468 F.Supp.2d 1172, 1176, 1178 (C.D.Cal.2006) ("A lack of funds does not justify what is otherwise a constitutional violation.”); Stone v. City and County of San Francisco, 968 F.2d 850, 858 (9th Cir.1992), cert. denied, 506 U.S. 1081, 113 S.Ct. 1050, 122 L.Ed.2d 358 (1993) ("[Fjederal courts have repeatedly held that financial constraints do not allow states to deprive persons of their constitutional rights.”); N.G. v. Connecticut, 382 F.3d 225, 234 (2d Cir.2004) ("Mere convenience, however, cannot be a sufficient interest to justify such a serious impairment of privacy”).

91

. See A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572, 583 (3d Cir.2004) (finding that the evidence supported an inference that the potential for conflict between residents of a juvenile detention center was high, making summary judgment inappropriate on the failure to train claim against the center); Bd. of County Com’rs of Bryan County v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ("[A] high degree of predictability may also support an inference of causation—that the municipality’s indifference led directly to the very consequence that was so predictable.”). See also Shultz v. Carlisle Police Dept., 706 F.Supp.2d 613, 625 (M.D.Pa.2010) (denying summary judgment in finding that evidence showed that the training of the officers in dealing with ill and mentally ill persons was "so inadequate as to represent deliberate indifference to citizens' constitutional right”); Connick v. Thompson, - U.S. -, 131 S.Ct. 1350, 1366, 179 L.Ed.2d 417 (2011) (finding that Brady violation not within "single incident” liability hypothesized in Canton because prosecutors receive other legal training—in law school and beyond).

104

. The defendants argue that the plaintiff’s expert cannot be considered when ruling on the defendants’ motion. However, the case law they cite for this proposition is not on point with this argument. Those cases were ruling on whether plaintiff's experts were qualified to testify under Daubert, not whether the information they provide could be considered at all. See Brown v. Burghart, No. 10-3374, 2012 WL 1900603, at *5 (E.D.Pa. May 25, 2012) (discussing the admissibility of expert evidence related to a Daubert motion and explaining that an expert could not speak to the ultimate issue of the case but could testify about general police practices); Damiani v. Momme, Civil Action No. 11-2534, 2012 WL 1657920, at *2 (E.D.Pa. May 11, 2012) (striking expert's report on Daubert motion because it was not timely submitted but explaining that the expert could speak to common police procedures so long as the expert doesn’t answer the ultimate questions of the case); Tschappat v. Groff, Civil Action No. 3:CV-01-2279, 2004 WL 5509087, at *4 (M.D.Pa. June 2, 2004) (on a Daubert motion, finding that plaintiff’s expert "permitted to testify if, in his opinion, [the defendant’s] conduct was in conformance with standard police procedures based on his extensive law enforcement background,” but not about whether the defendant's "use of force in [that] case was unreasonable and excessive”). The expert’s explanation of what police practices are common may be used to show that a dispute of material fact exists. See Tschappat v. Groff, Civil Action No. 3:CV-01-2279, 2004 WL 5509087, at *4 (M.D.Pa. June 2, 2004).

117

. The City of Allentown's training was based information provided by the TASER® Company itself. See Ammary Taser Training Academy Certification, Doc. No. 65; Ex. J (Jul. 8, 2011). As the plaintiff’s expert notes, the U.S. Department of Justice advises: "Departments should not solely rely on training curriculum provided by a [Conducted Energy Device or] CED manufacturer. Agencies should ensure that manufacturers’ training does not contradict their use-of-force policies and values. Agencies should ensure that their CED curriculum is integrated into their overall use-of-force systems.” See William T. Gaut Report, Doc. No. 65, Ex. U at 19 (quoting U.S. Department of Justice, Office of Community Oriented Policing Services, Conducted Energy Devices: Development of Standards for Consistency and Guidance, Nov. 2006). Chief Hanna indicated that "some of. the verbiage in here was drawn from Taser International and was incorporated into our procedure for deployment.” See Joseph Hanna Deposition, Doc. No. 67, Ex. F at 40. He wasn’t sure if it was taken verbatim from Taser’s language. Id.

119

. Chief Hanna and Lieutenant Reinik testified that the Use of Force Policy itself was provided by a private company called Protective Safety Systems. See William Reinik Deposition, Doc. No. 67, Ex. E at 18-19, 90-91; Joseph Hanna Deposition, Doc. No. 67, Ex. F at 107. Lieutenant Reinik explained that the Taser course does not "go into exactly detail that you will use this like the Allentown Police Department's Protective Safety Systems use of force continuum does.” See William Rein-ik Deposition, Doc. No. 67, Ex. E at 42-43. He recognized that the Taser information in the training materials was not that specific. Id. at 43. From the record, it does not appear that Protective Safety Systems’ policy addressed the use of Tasers. Id. at 20-30. Lieutenant Reinik names one officer he believed helped write the Taser Policy but also noted that the policy appeared to be taken mostly from TASER®’s training materials. Id. at 26-27. Chief Hanna also explained that the information in the use of force continuum came from Protective Safety Systems and from Taser International. Joseph Hanna Deposition, Doc. No. 67, Ex. F at 38-39. Chief Hanna also believed that the Taser policy was drawn directly from Taser International’s training materials. Id. at 40. See also id. at 40-43.

128

. Another point of dispute if whether Officer Ammary should have verbally warned Ms. Wilson that he was deploying his Taser. A number of cases involving Taser usage look at whether an officer warned a suspect that the person might be tased before deploying the Taser. See, e.g., Ickes v. Borough of Bedford, 807 F.Supp.2d 306, 313, 324 (W.D.Pa.2011) (finding that arresting officer’s tasering of a handicapped individual was appropriate after the plaintiff was warned that he might be tasered and the plaintiff responded, “Go ahead and taser me.”); Zivojinovich v. Barner, 525 F.3d 1059, 1071-73 (11th Cir.2008) (per curiam) (use of a taser to subdue a suspect who had repeatedly ignored police instructions and continued to act belligerently found to be reasonably proportionate to the need for force).

The Allentown Police Department’s Use of Force Policy states that officer should announce that they are tasing a person before doing so. This policy is meant to “alert other officers, as well as to provide the subject an additional opportunity to cease the conduct that has given rise to the deployment of the Taser.” See Allentown Police Department General Order 4-14 (Use of Force Policy), Effective Apr. 27, 2011, Doc. No. 65, Ex. O at 4.14.05M. “Verbal commands should be used constantly before (whenever practical), during, and after the deployment of the Taser to warn the subject to cease his/her aggressive demeanor or action.” Id.

According to Chief Hanna, however, the primary purpose of the constant verbal commands before tasing was not to offer the subject another opportunity to cease the objectionable conduct. See Joseph Hanna Deposition, Doc. No. 67, Ex. F at 121. In his opinion, "if an officer has found reason to deploy the Taser, generally that’s done in a matter of seconds ...” Id. He indicated that officers were trained to only verbally warn when possible and that an officer must simply yell " 'Taser, Taser, Taser,' and then pull the trigger.” Id. at 110. Yet. Lieutenant Reinik testified that that the Tasers were specifically chosen to be yellow in order to serve as a deterrent. The hope was that "when the Taser is brought out to say, you know, “I don’t want to get tased, I don’t want you to tase me, and I give up.” Id. at 39.

Officer Ammaiy did not verbally warn Ms. Wilson before tasing her. See Jason Ammaiy Deposition, Doc. No. 67, Ex. C at 186, 190. [496] Officer Ammary claimed he had been trained to verbally warn before tasing but did not do so because it was not required'depending on the situation. See Jason Ammary Deposition, Doc. No. 67, Ex. C at 191. He estimates that less than two seconds elapsed between the time he stepped away from M s. Wilson and when he tasered her. See Jason Ammary Deposition, Doc. No. 67, Ex. C at 186, 190. Ms. Wilson claims the entire encounter lasted maybe a whole minute from initial contact to her tasing. See Keshana Wilson Deposition, Doc. No. 67, Ex. 2 at 144.

132

. The defendants argue that summary judgment on this Monell claim in their favor is appropriate based on Sallie v. Lynk, No. 2:10cv456, 2012 WL 995245, at *9 (W.D.Pa. Mar. 23, 2012). This case is factually distinguishable and not helpful. Sallie determined the training was adequate because "[t]here is no evidence that this entire regiment of training somehow overlooks a critical area where citizens’ constitutional rights are placed in jeopardy.” Id. at *9. While Sallie involved the use of taser for a dry stunning the plaintiff in that case, the plaintiff was an adult who was ordered to stop resisting arrest but failed to comply. Id. at *2. The exchange that occurred prior to Sallie’s arrest was more extensive and involved Sallie yelling at the officers, who had been called to his house due to complaints of a loud party. Id.

135

.Lieutenant Reinik estimated that one in ten of the tasing incidents involved injuries to the suspect. William Reinik Deposition, Doc. No. 67, Ex. E at 101. Of the one hundred tasing incidents reviewed by the Department’s Taser Review Board, none were found to be inappropriate. Id. Reinik admits that these incidents may not have been a "best practice” of that “more thought should have [gone] into the actual use of the Taser.” Id. at 102. See also Joseph Hanna Deposition, Doc. No. 67, Ex. F at 128-29 (explaining how the Taser Review Board has never found a violation of the policy though may not be a "best practice”). Nonetheless, the Department’s Taser Policy was not updated following these incidents. See William Reinik Deposition, Doc. No. 67, Ex. E at 72-73, 106. Prior to the policy being implemented, no officers in the Department had used Tasers in practice. The only electronic control device that had been used, by comparison, was a stun baton used only on aggressive dogs (not humans). Id. at 74-75. This raises a question of whether the officers, unfamiliar with this type of technology as it pertained to humans, should have been given more guidance.

Lieutenant Reinik, the Department's Taser trainer, testified: "I have never seen a reason or a need to address to the chief of police that we need to do something different with the Taser program.” Id. at 107. Chief Hanna admits he did not review any of the incidents. See Joseph Hanna Deposition, Doc. No. 67, Ex. F at 121-25.

Geist v. Ammary, 40 F. Supp. 3d 467, 2014 U.S. Dist. LEXIS 117046, 2014 WL 4160346 (E.D. Pa. 2014).

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I. BACKGROUND1

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I. BACKGROUND¹