PEREZ v. THE BOROUGH OF JOHNSONBURG

• Court: District Court, W.D. Pennsylvania
• Decided: July 23, 2021
• Docket: 1:18-cv-00180
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Angel Perez, Jr., ) ) No. 1:18-cv-180 Plaintiff ) ) v. ) Hon. Richard A. Lanzillo ) United States Magistrate Judge The Borough of Johnsonburg, ) David Cuneo, ) Memorandum Opinion on Defendants’ ) Motion for Summary Judgment Defendants ) ) ECF No. 45

Defendants’ motion for summary judgment (ECF No. 45) is pending before the Court. For the reasons discussed below, the motion will be granted in part and denied in part. I, Introduction The Fourth Amendment plays a major role in regulating how police officers interact with members of the public. It limits their authority to arrest individuals and evinces a general preference that such deprivations of liberty occur only upon the issuance of a warrant by an independent judicial official. The Fourth Amendment also limits the force officers may use in effectuating an arrest or other detention. While the law gives “a certain deference to police officers who employ reasonable

means to effect the arrest of dangerous or resisting subjects,” that deference does not extend to uses of force that ate excessive or improperly motived. Karcher v. Pennsylvania

State Police Department, 2016 WI. 4379143, at *1 (M.D. Pa. Aug. 8, 2016). In

determining whether an officer’s use of force was reasonable, “the after acquired benefits of hindsight must yield to an objective sense of reasonableness,” the boundaries of which ate set by “the officet’s observations in that particular moment.”

Id. The facts of this case implicate these principles and competing considerations.

Il. Material Facts This action atises out of a November 21, 2017 encounter between Plaintiff

Angel Perez (Perez) and Defendant David Cuneo (Cuneo), a police officer employed by Defendant Borough of Johnsonburg, Pennsylvania. That encounter involved

Cuneo’s initial seizure of Perez, followed by his escalating use of force, which ultimately culminated in Cuneo’s use of his service weapon to shoot Perez. The

following facts are taken from the Defendants’ Concise Statement of Material Facts

(ECF No. 47), Perez’ Responsive Concise Statement (ECF No. 57), and the exhibits

thereto. Citations to record are omitted except where the Coutt refers to specific □

deposition testimony. Material disputes of fact are noted. Perez was known to local law enforcement authorities, including Cuneo, priot to November 21, 2017. Cuneo had known Perez since joining the Johnsonbutg Borough Police Department in 2007. Perez had a history of illegal drug use and previously had been charged with various criminal offenses, including burglary and

theft; he had served time in state and local prisons.

In November 2017, the St. Marys, Pennsylvania, Police Department was investigating a burglary that occurred within its jurisdiction. On November 5, 2017, Sergeant Pistner of the St. Marys P.D. called Cuneo and told him that Perez was a

suspect in the investigation of that burglary and that the St. Marys P.D. would be

seeking a search warrant to obtain a DNA sample from Perez. Cuneo received a call

from another St. Marys police officer the following week regarding his department’s attempts to obtain a search watrant for Perez’? DNA. The St. Marys P.D. ultimately secured the DNA search warrant at 12:50 p.m. on November 20, 2017. ECF No.

53-4. Although Cuneo had never been presented with a warrant for Cuneo’s attest, and no one had told Cuneo that the St. Matys Police had procured such a warrant, Cuneo etroneously assumed that both a warrant to attest Perez and a search wartant

for his DNA were outstanding. ECF No. 47-2 (Cuneo Deposition), p. 18 (Well, I

thought there was two wattants... That there was a body warrant for the burglary and

they wanted his DNA and had a seatch warrant for that.”). Atleast as of November 20, 2017 through the date of his deposition, Cuneo did not distinguish between the two types of wartants as far as how he dealt with individuals such as

Perez. See id. p. 20. And, as of the date of his encounter with Perez, Cuneo also did

not know that the search warrant that the St. Marys P.D. actually obtained for Petez’

DNA expressly limited its execution to between the hours of 6:00 a.m. and 10::00 p-m.! On November 20, 2017, Cuneo started his shift at 11:00 pm and was scheduled

to conclude his shift at 7:00 a.m. He was the only officer on duty that night. Cuneo

testified that, upon his arrival at the police department, he reviewed the daily log entries from the preceding shift and noted that the St. Marys Police Department was

“looking for Perez” pursuant to “a search watrant for his DNA.” The log included

no teference to an attest warrant but, as noted, Cuneo nevertheless assumed that the

St. Marys P.D. had also secured a warrant for Perez’ arrest. Based upon this

erroneous assumption and his ignorance of the time limitation upon which officers

authorized to execute the DNA seatch warrant, Cuneo intended to arrest Perez

if, and whenever, he encountered him. Id. Shortly after Cuneo began his shift, he parked his police vehicle neat a local

convenience store. Just after midnight, Cuneo observed Perez walking down the

street. Cuneo drove from the convenience store past Perez. As Perez approached, Cuneo exited his vehicle and stated he needed to talk to him. Perez recognized Cuneo, responding “what’s up Cuneo?”. Cuneo then told Perez that the St. Marys P.D. had a warrant for his arrest, and a wartant to collect a DNA sample, and that he

would be taking him to the St. Marys P.D. pursuant to those warrants. Perez declined

| Pennsylvania Rule of Criminal Procedure 203 requires that search warrants conducted at night be authorized only after a finding of “reasonable cause.” Pa. R. Crim. P. Rule 203 (E). No such authorization was obtained regarding the seatch warrant for Perez’ DNA.

to go with Cuneo, stated that he was going home, and began to run of jog away. Cuneo pursued Perez and discharged his taser weapon, the leads or conducting prongs of which struck Perez in the back of the head. Cuneo contends that prior to deploying his taser, he warned Perez that “you better stop or I’m going to tase you.” Perez asserts that Cuneo provided no warning before firing his taser. The parties do

agtee, however, that the shock of the taser caused Perez to fall to the ground and that

as Perez fell his face struck a large rock. The impact of his fall broke Perez’ nose. Cuneo approached Perez and instructed him to “stay down.” At this point in the

encounter, Perez was lying face-down on the ground. Cuneo testified that Perez repeatedly attempted to stand up and that each time Perez did so, he engaged his taser

to shock him. Cuneo’s taser was equipped with a camera that began recording when

Cuneo first activated the weapon. See ECF No. 49. The camera recorded that Cuneo discharged his taser on Perez five times during the encounter. The first discharge lasted approximately 5 seconds; the second, approximately 14 seconds, the third, approximately 40 seconds, the fourth, approximately 20 seconds, and the fifth, approximately 20 seconds. The video also

shows Perez lying face-down on the ground with his hands initially beneath his chest, and Cuneo is heard repeatedly instructing Perez to place his hands behind his back.

Between the second and third tasing, Cuneo is recorded threatening Perez, “I will light the fuck up” if Perez does not comply. Perez is recorded repeatedly telling Cuneo he is unable to comply because he is injured. It is clear from the video that

Perez’ hands wete no longer concealed beneath his chest after the third tasing. Cuneo

is also recorded advising Perez that he needed medical assistance. After the last discharge of Cuneo’s taser, Perez attempted to stand up, which prompted Cuneo to attempt to discharge his taser again. This time, however, the

taser did not administer a shock to Perez. Apparently, Cuneo’s prior uses of the taser

had exhausted its charge. Cuneo and Perez disagree as to what happened next, and

because Cuneo’s taser had fallen or been dtopped to the ground, it no longer recotded video of the interaction between the two.’ Perez asserts that he did not

ageress towatds Cuneo but instead attempted to get off the ground and flee as Cuneo

repeatedly struck him with his retractable police baton. In contrast, Cuneo maintains

that Perez stood up, lunged at him, and punched him in the face. Cuneo claims that

he and Perez traded blows for “over eight minutes” duting which time he sustained

more than 20 punches from Perez to his head. ECF No. 53-2, p. 111. As the fight went on, Cuneo says he fell to his knees and Perez continued to hit him. Id, p. 128.

Perez denies lunging at Cuneo but admits to “rolling around on the ground” during the struggle. At some point during this struggle, a witness, Thomas Costanzo, arrived

on the scene. Costanzo told Perez to “just get on the ground” and to listen to Cuneo. At one

point, Costanzo attempted to grab Perez’ arm or coat to assist Cuneo, but he

2 However, the taser continued to record audio.

withdrew when he noticed significant amounts of blood on Perez, apparently from the injuries he had sustained during the encounter. Desiting to avoid possible contamination from Cuneo’s blood, Costanzo tetutned to his cat but remained in the

atea for the rest of the encounter. Cuneo assetts that Perez continued to strike him

with his fists and wrestle with him while Perez contends that he was merely trying to

escape Cuneo’s blows. Both apparently agree that Cuneo struck Petez several times

in the head with his collapsible baton in an effort to subdue him. Perez contends that

he attempted to run away from Cuneo to escape his blows when Cuneo drew his firearm and shot him in the back. Perez asserts that he was approximately 12-20 feet

away when Cuneo shot him. Costanzo, who remained at the scene, estimated that

Petez was approximately 10-to-15 feet away when Cuneo shot him. Cuneo’s version of events leading to his shooting Perez differs materially from

Perez’ recounting. He testified that he told Perez, “Angel, if you hit me one more

time, I’m going to shoot you.” Cuneo asserts that Perez continued to attack him and, fearing he might lose consciousness ot Perez might acquite his gun, he drew and

discharged his weapon. Cuneo theorizes that his bullet struck Perez in the back because Perez must have been twisting ot turning when he fired his weapon. Petez

fell to the ground, landing in a face down position with both hands pinned underneath his body. Cuneo held Perez on the ground for approximately twenty to

thirty seconds until police officers from neighboring jurisdictions arrived on scene.

The responding officers then proceeded to handcuff Perez and check his

person for weapons. Perez was unarmed but he was found to be in possession of hypodermic needles and drug paraphernalia. Once Perez had been secured, an ambulance was dispatched to the scene of the arrest. Responding paramedics found

an “oddly shaped” bullet hole in Perez’ back. Perez was transported to a nearby hospital. During the ride to the hospital, Perez told an accompanying police officer that he had been using methamphetamines “all day.” Laboratory analysis later confirmed Perez’ statement. Ill. Procedural History Perez initiated this lawsuit by filing a Complaint on June 18, 2018. ECF No. 1.

He named the Borough of Johnsonburg and Officer Cuneo as defendants. Perez amended his Complaint on August 27, 2018 (ECF No. 9) and the Defendants answered on September 18, 2018 (ECF No. 11). All parties have consented to the

jurisdiction of a United States Magistrate Judge. See ECF Nos. 8, 10, 14. Following discovery, the Defendants filed the instant motion, a brief in support of the motion, and a Concise Statement of Material Facts. See ECF Nos. 45-47. Thereafter, Perez filed a brief in opposition to the Defendants’ motion, and a

responsive Concise Statement of Material Facts. ECF No. 53. The Defendants have

filed a Reply Brief (ECF No. 55). The matter is now ripe for disposition.

IV. Summary Judgment Standard Federal Rule of Civil Procedure 56(a) requires the court to enter summary judgement “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Under this standard “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-48 (1986). A disputed fact is “material” if proof of its existence ot nonexistence would affect the outcome of the

case under applicable substantive law. Anderson, 477 US. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving patty. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991). When determining whether a genuine issue of material fact remains for trial, the court must view the record and all reasonable inferences to be drawn therefrom in favot of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cit. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summaty judgment, however, the nonmoving patty may not test on the unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden of identifying evidence that

demonstrates the absence of a genuine issue of material fact, the nonmoving patty must go beyond his pleadings with affidavits, depositions, answets to interrogatories ot other record evidence to demonsttate specific material facts that give rise to a

genuine issue. Celotex Corp. v. Catrett, 477 U.S, 317, 324 (1986). Further, under Rule 56, a defendant may seek summary judgment by pointing to the absence of a genuine fact issue on one or more essential claim elements. The

Rule mandates summary judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When Rule 56 shifts the burden of production to

the nonmoving party, “a complete failure of proof concerning an essential element of

the nonmoving patty’s case necessarily renders all other facts immaterial.” Celotex, 477 US. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). To state a claim for relief under § 1983, “a plaintiff must demonstrate the

defendant, acting under color of state law, deprived him or her of a right secured by the Constitution or the laws of the United States.” Accordingly, to evaluate Perez’

claims in the context of a motion for summary judgment, the Court must determine

whether there ate disputed issues of material fact that, if found for Perez, would show

he was deprived of a constitutional right. Cost ». Borough Of Dickson City, et al, 2021 WL.

2255505, at *4 (3d Cir. une 3, 2021) (quoting Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citation omitted).

V. Discussion and Analysis A. Clarification of the Fourth Amendment Claim Before proceeding, the Court must clarify the nature of Perez’ claim. Petez’ Amended Complaint (ECF No. 9) includes three counts: a Fourteenth Amendment

due ptocess/bodily integrity claim (Count I), a Fourteenth Amendment due ptocess/state created danger claim (Count II), and a Fourth Amendment excessive force claim (Count IIT). Count I also includes a claim that “Defendant Cuneo’s

actions and inactions, as described [earlier in the Amended Complaint], constitute violations of Plaintiffs rights under the Fourteenth Amendment to the United States

Constitution], including]... the right to be free from unreasonable searches and seizures.” KCK

No. 9, § 32 (emphasis supplied). Earlier in his pleading, Perez refers specifically to

Cuneo’s attempt to atrest him without an arrest warrant. Id. 4/15. Accordingly, the

Coutt interprets the Amended Complaint to include a claim challenging the constitutionality of Cuneo’s initial stop and arrest of Perez. Defendants also understood the Amended Complaint to raise this claim as the very first argument asserted in their brief in support of their motion for summary judgment is a full-throated defense of the legality of Cuneo’s stop of Perez. ECF No. 46, pp. 5-9.

The parties also conducted significant discovery regarding this claim. The Fourth Amendment right to be free from unreasonable search and seizure

is applicable to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S.

643 (1961). Similarly, the warrant requirements of the Fourth Amendment have also 11

been incorporated against the states through the Fourteenth Amendment. See Agauilar v. Texas, 378 U.S. 108 (1964); Ker v. Cakfornia, 374 U.S. 23 (1963). However, Perez’

attempt to raise substantive due process and “state created danger” claims under the Fourteenth Amendment is untenable. As the Supreme Court has explained, “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth ... Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States

v. Lanier, 520 U.S. 259, 272 n.17 (1997); see also Tingey v. Gardner, 827 Fed. Appx. 195 (3d Cir. 2020) (quoting Lamer). Under the more-specific provision rule, Perez’ claims in Counts I and IT of the Amended Complaint telating to Cuneo’s alleged unlawful

stop and arrest and use of excessive force must be analyzed under the Fourth Amendment, the constitutional provision specifically addressing the rights Perez seeks

to vindicate. This rule precludes Perez from recasting these claims as substantive due

ptocess ot “state created danget” claims under the Fourteenth Amendment. See Tingey, 827 Fed. Appx. at 198 (holding that a substantive due process claim crashes into the more-specific-provision rule); Salyer v. Hollidaysburg Area Sch. Dist., 2016 WL 5376218, at *5 (W.D. Pa. Sept. 26, 2016) (citing Wheeler v. City of Philadelphia, 367 F. Supp. 2d

737, 747 (B.D. Pa. 2005) (““pure” Fourth Amendment claims cannot also be brought under the Fourteenth Amendment using the state-created danger doctrine)).

B. Cuneo Is Not Entitled to Summary Judgment on Perez’ Unlawful Seizure Claim. 1. Defendants’ Argument that Cuneo’s Detention of Perez was a “Terry Stop” is Contrary to the Record. “(T]he ‘seizure’ of a ‘person’ ...can take the form of ‘physical force’ or a ‘show

of authority’ that ‘in some way resttain[s] the liberty’ of the person.” Torres v. Madrid, 592 U.S. _,141 S. Ct. 989, 995 (2021) (internal punctuation omitted) (quoting Terry □□

Ohio, 392 U.S. 1, 19, n. 16 (1968)). Whether Cuneo’s seizure of Perez occurted when

he deployed his taser to stop Perez from leaving or when Perez submitted after being shot in the back, there is no question that Cuneo seized Perez within the meaning of

the Fourth Amendment. See Brendlin v. Calfornia, 551 U.S. 249, 250 (2007) (holding that “[a] seizure occuts when a reasonable person (1) would not feel ‘free to leave’ or

(2) would not feel ‘free to decline the officets’ requests or otherwise terminate the

encounter”); Alvin v. Calabrese, 455 Fed. Appx. 171, 175 (d Cir. 2011) (when a

person’s “liberty is restrained by an officer’s ‘show of authority,’ a seizure does not

occur unless the person yields to that show of authority.” (citing Cahfornia v, Hodari D., 499 USS. 621, 626 (1991)). Defendants argue that Cuneo’s encounter with Perez started as a simple “investigatory stop” pursuant to Terry v. Ohio, 392 U.S. 1 (1968). The record, including Cuneo’s own deposition testimony, belies this characterization. Cuneo

testified that when he encountered Perez on November 20, 2017, he believed that

both a search wartant and an artest watrant, which he describes as a “body warrant,”

had been issued for Perez. ECF No. 47-2, p. 18 (Well, I thought there was two

wartants... That there was a body warrant for the burglary and they wanted his DNA and had a search warrant for that.”). In Cuneo’s mind, the distinction between the

two types of warrants made no difference in how he approached and dealt with subjects such as Perez. Cuneo testified: Q. Does the difference in the type of warrant change yout apptoach to how you approach an individual in attempting to either arrest them under a body watrant or get an item from them under a search wattant? A. No. Q. Your approach is the same? A. Yes. Q. What---what is your approach A. — I would look for them, see them, tell them they have a warrant, place them under arrest for the warrant, and then whatever the instructions would be from that. Id., p. 20. This was precisely the approach Cuneo intended to take, and ultimately did

take, when he encountered Perez on November 20, 2017. Cuneo testified unambiguously that if he encountered Perez, he intended to place him under artest:

Q. — So if it was only a search warrant lke for DNA, would | you place that person under arrest before you would attempt to collect DNA? A. — It would still be a warrant, yes.

Q. Okay. Tell me what---you, if everything had gone smoothly with Angel Perez, what would the ptocedure have been as far as executing the search warrant for his DNAP 40K A. If it would have went smoothly, I would have met him. As I said, I have nothing in this. I'd take him into custody, put him into cuffs under the warrant. He'd be under arrest. | would then notify the department that wanted him and we would do a transfer halfway. Q. So even if it was just a search warrant for his DNA, you would actually place him under arrest?

A. Yes. It’s still a warrant.

Td. (emphasis supplied).

Cuneo’s intentions and actions on November 20, 2017 were wholly inconsistent with a “Terry stop” —i.e., “a ‘brief, investigatory stop when the officer has

a teasonable, atticulable suspicion that criminal activity is afoot.” United States v.

Hester, 910 F.3d 78, 84 (3d Cir. 2018) (quoting Ilinois v. Wardlow, 528 U.S. 119, 123

(2000)). See also United States v. Hensley, 469 U.S, 221, 229 (1985) (“[I]f police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a

Terry stop may be made to investigate that suspicion.”)). Cuneo was not involved in

the St. Matys Police Department’s investigation of the burglary that occurred within

its jurisdiction. He independently observed no conduct or circumstances to support a

reasonable suspicion that Perez was engaged in criminal activity when he encountered him. While Defendants’ principal brief devotes significant attention to Perez’ history of drug use, criminal record, and prior incarceration, these facts alone did not support a Terry stop, and certainly not an arrest. Defendants do not argue, and the tecord does not support, that Cuneo observed any conduct or citcumstances on November 17, 2017 that created a reasonable suspicion that Perez was engaged in criminal activity. Mote importantly, Cuneo unambiguously testified that he formed the intent to arrest Perez on sight before he encountered him. The fact that drug pataphernalia was discovered on Perez’ person affer the stop and that he later admitted

to drug use in no way justifies the initial stop because Cuneo knew none of this information when he initiated his arrest of Perez.

Thus, Cuneo based his decision to take Petez into custody on none of the

factors recognized in Terry and its progeny. Instead, Cuneo’s intent was clear—he was

going to place Perez under arrest pursuant to the wartant. Cuneo’s intent to place Perez under arrest and transport him to St. Marys Police Department personnel is

fundamentally inconsistent with a Terry stop. In effectuating a Terry stop, police cannot “seek to verify theit suspicions by means that approach the conditions of attest.” Florida v. Royer, 460 U.S. 491, 499 (1983). In other words, “an investigative detention must be temporary and last no longer than is necessaty to effectuate the

purpose of the stop. Similarly, the investigative methods employed should be the

least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Id at 500. “The brief investigative stop allowed under Terry, is

just that; a brief stop to allow police to investigate. The initial stop does not justify an arrest, prolonged detention, ot a stop that lasts any longet than is reasonably necessaty to investigate.” United States v. Bey, 911 F.3d 139, 146-47 (3d Cir. 2018) (emphasis supplied).

Because the record suppotts a finding that Cuneo arrested Perez on November 20, 2017—and was not conducting a brief investigatory “Terry stop” — Defendants’ motion next requires that the Court determine whether the record establishes the legality of that arrest as a matter of law.

2. Cuneo’s Attest of Perez was Beyond the Authority Granted by the DNA Warrant and, Therefore, a Violation of the Fourth Amendment. The warrant obtained by the St. Marys Police Department authorized the

collection of DNA samples from Perez. The application of a cheek swab to “obtain

DNA samples is a search” subject to the Fourth Amendment’s prohibition against “unreasonable searches and seizures.” Maryland v. King, 569 U.S. 435, 446, 133 S. Ct.

1958, 1968-69, 186 L. Ed. 2d 1 (2013). Indeed, “[v]irtually any ‘intrusion into the

human body...will work an invasion of ‘cherished personal security’ that is subject to

constitutional scrutiny.” Id. (internal citation and quotation omitted) (sting Cupp v.

Murphy, 412 U.S. 291, 295, 93 S. Ct. 2000, 36 L.Ed.2d 900 (1973) (quoting Terry v. Ohio, 392 U.S. 1, 24-25, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968)).

Here, Perez does not argue that the police lacked probable cause to obtain the seatch wartant for his DNA. Rather, he challenges the legality of the timing of

Cuneo’s attempted execution of the warrant. The wartant expressly limited the

authority of officers to execute the warrant to between the hours of 6:00 a.m. and

10:00 p.m. Pennsylvania law, much like the Federal Rules of Criminal Procedure, draws a distinction between attest/bench warrants and seatch wattants. Pennsylvania Rule of Criminal Procedure 150 governs the issuance and execution of bench

wattants and does not place any limitation on the time when officers can take a

suspect into custody. Pennsylvania Rule of Criminal Procedure 515 similarly governs the issuance and execution of attest watrants, and like Rule 150, does not prohibit the

execution of a wartant at night. In fact, Pennsylvania Rule of Criminal Procedure 431 institutes specific procedures for bench and attest warrants served outside of the

hours of 6:00 a.m. and 10:00 p.m. See Pa. R. Crim. P. 431(A)(1) and (2). In contrast, Pennsylvania Rule of Criminal Procedure 203 requites that search warrants conducted

at night be authorized only after a finding of “reasonable cause.” Pa. R. Crim. P. Rule

Defendants acknowledge that no arrest watrant was outstanding for Perez

when Cuneo arrested him on November 20, 2017. They also do not argue that the St.

Marys police made the “reasonable cause” showing necessary to authorize execution of the seatch warrant at night. Indeed, it is undisputed that the wartant to collect

Petez’? DNA expressly restricted the hours of its execution to between 6:00 a.m. and

10:00 p.m. and that Cuneo’s arrest of Perez occutted well-outside of this authorized timeframe.

Absent ambiguity in the warrant, “the issue whether the seatch was in fact authorized by the warrant is determinable by a reading of the warrant’s simple and unambiguous language.” U. S. ex rel Boyance v. Myers, 398 F.2d 896, 898 (3d Cir.

1968). This includes language restricting when a warrant may be served. Id. at 898-99

(“To find that a warrant which is explicitly limited to daytime searches legalizes search

at any hour of the day or night would be to disregard the magistrate’s actual

determination and thus to nullify the requirement of a prior impartial determination

that a particular search will be reasonable.”). ““When the right of privacy must

reasonably yield to the right of search is, as a tule, to be decided by a judicial officer,

not by a policeman, or Government enforcement agent.”’ Id. at 899. (quoting Johnson

v. United States, 333 U.S. 10, 14 1948)). Thus, at the time Cuneo encountered Perez, the DNA search watrant’s simple and unambiguous terms provided Cuneo with no

authority to atrest Perez ot to otherwise take him into custody for delivery to the St.

Marys P.D.

3. The Record Belies that Cuneo had a Reasonable Belief that He Was Authorized to Arrest Perez on the DNA Warrant.

Prior to November 20, 2017, Cuneo learned that the St. Marys police would be obtaining “a search warrant in order to obtain a sample of DNA from Perez” in

connection with their investigation of a burglary. ECF No. 47 (Defendants’ Concise

Statement of Material Facts), § 21. Although Cuneo admits that he was never told

that an atrest warrant had been issued for Perez, he assumed that an arrest warrant for

Perez was outstanding on November 20, 2017. ECF 47-2, p. 19. The existing record

includes nothing to support that Cuneo ever attempted to verify his erroneous assumption or that he requested a copy of the warrant, or even asked about its nature,

contents, or limitations. In addition, given his years of experience as a law enforcement officer, he should have known that Pennsylvania law did not permit the

execution of a seatch warrant at night unless specifically authorized following a

showing of “reasonable cause.” Thus, the record does not support a finding as a

matter of law that Cuneo had a reasonable (albeit mistaken) belief that a warrant

authorizing the arrest of Perez was outstanding. Indeed, the illegality of the execution

of a seatch warrant outside of its specified limitations had been clearly established for

decades before Cuneo’s encounter with Perez. See Sgro v. United States, 287 U.S. 206, 212 (1932) (holding that a warrant is “dead,” and a seatch undertaken pursuant to that

wattant invalid, after the expiration date on the warrant); Johnson v. United States, 333

USS. at 14 (holding that the parameters of a search are “to be decided by a judicial

officer, not by a policeman, or Government enforcement agent”). In 1968, the Court of Appeals for the Third Citcuit specifically applied this rule to a search warrant executed outside of its specified time limitations. See U. S. ex rel Boyance v. Myers, supra.

C. Perez’ Excessive Force Clatm

1. The Illegality of Cuneo’s Arrest Does Not Bear on Perez’ Separate and Independent Excessive Force Claim.

Perez’ illegal stop/arrest claim and his excessive force claim are distinct claims

under the Fourth Amendment. See, e.g, Kéein v. Madison, 374 FP. Supp. 3d 389 (E.D. Pa.

Apt. 10, 2019) (noting separate claims under the Fourth Amendment for a wartantless search and the use of excessive force); Waugh v. Dow, 2014 WL, 2807574 *3 W.D. Okl. June 20, 2014) (granting summary judgment on Fourth Amendment warrantless

artest claim but denying summaty judgment on Fourth Amendment excessive force

claim). Bello v. Lebanon City Police Dep’t, 2013 WL 53981, at *7 (M.D. Pa. Jan. 3, 2013) (recognizing separate claims under the Fourth Amendment whete the fact of a wattantless arrest was offered “in support of’ plaintiff's excessive force claim) (emphasis in original). Indeed, the Court of Appeals for the Third Circuit has □

cautioned against conflating the two claims. In Snell v. City of York, Pa., for example, the plaintiff argued that the force applied during arrest was unreasonable (ze., excessive) because his initial arrest was illegal. 564 F.3d 659, 672 (3d Cir. 2009). The

Coutt of Appeals rejected this argument and held that a plaintiffs illegal arrest does

not turn his atrest into an excessive force case. Id. If that were so, “every unlawful

attest claim would bring with it a tagalong excessive force claim. That is not the law.” Daniels v. City of Philadelphia, 2017 WL 25382, at *4 (E.D. Pa. Jan. 3, 2017) (citing Snell, 564 F.3d at 672) (“We have rejected similar efforts to bootstrap excessive force claims

and probable cause challenges.” (citations omitted). See also Bodine v. Warwick, 72 F.3d

393, 400 & n.10 (3d Cir. 1993) (rejecting conflation of claims for false arrest and

excessive force, noting that “merely because a person has been falsely arrested does

not mean that excessive force has been used”); Brackbill v. Ruff, 2018 WL 2322014, *5

(M.D. Pa. May 22, 2018). As the Court of Appeals for the Seventh Circuit noted, “the

doctrine of Fourth Amendment reasonableness has distinct, component parts. A

seizute without probable cause is conceptually different from a seizure that employs excessive force; both ate unreasonable but for different reasons.” Carlson v. Bukouc, 621 F.3d 610, 622 n. 19 (7th Cir. 2010). Thus, Cuneo’s arrest of Petez on an inactive search warrant does not mean that force Cuneo used to effectuate the arrest was excessive. See Boardman v. City of Philadelphia, 661 Fed. Appx. 183, 190 (3d Cir. 2016) (citing Romero uv. Story, 672 F.3d

880, 890 (10th Cir. 2012) (“[i]f the district court concludes that the arrest was

unlawful, the court may not automatically find any force used in effecting the unlawful

arrest to be excessive.”) “Instead, the district court must analyze the excessive force

[claim] under the assumption that arrest was lawful.” Id. See also Idris v. Conway, 2014

WL 4244222, *7 (N.D. Ill. Aug. 27, 2014) (holding that an unlawful arrest has no bearing on an excessive force claim). 2. Disputed Issues of Material Fact Remain for Trial Regarding the Reasonableness of Cuneo’s Escalating Use of Force. Even if Cuneo’s atrest of Perez was unconstitutional or otherwise illegal, Perez

had no right to resist that arrest. United States v. Ferrone, 438 F.2d 381, 389-90 (3d Cit.), cert. denied, 402 U.S. 1008 (1971) (no right to resist search pursuant to invalid search

wattant). A civil rights action or other appropriate court action—not self-help resistance—was Perez’ permissible means to address and remedy this deprivation. Perez’ refusal to comply with Cuneo’s directions triggered Cuneo’s authority to use

reasonable force to effectuate the arrest. At the same time, the Fourth Amendment

protects a citizen against an unreasonable use of force in connection with an arrest, investigatory stop, or other seizure. Graham v. Connor, 490 U.S. 386 (1989). The

analysis used to teview excessive force claims is well known; its touchstone is

reasonableness. Id, at 397. See also Ohio v. Robinette, 519 US. 33, 39 (1996); Sanzzni v.

Fuentes, 795 F.3d 410, 417 (3d Cir. 2015) (“In an excessive force case, we determine

whether a constitutional violation has occurred using the Fourth Amendment's

objective reasonableness test.”); Harrison-El v. Gaffney, 2021 WL 1721593 (B.D. Pa.

Apr. 30, 2021). The “reasonableness” of particular uses of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Id. Further, the “calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split second judgments — in

circumstances that are tense, uncertain, and rapidly evolving — about the amount of

force that is necessary in a patticular situation.” Id. at 396-97. Whether the use of

force was reasonable is normally a question for the jury. Révas, 365 F.3d at 198.

Cuneo and Perez agree that during their initial interaction, Cuneo informed

Perez that he was attesting him pursuant to the DNA seatch warrant. When Perez

attempted to leave the scene, Cuneo deployed his taser to stop him. While Cuneo and

Perez’ versions of the subsequent events differ materially, they agree that Cuneo’s

further use of force included his repeated engagement of his taser to shock Perez, his

striking of Perez with his retractable baton, and ultimately the use of his gun to shoot

Petez. As to each use of force, “the Court asks whether the officer’s conduct was

‘objectively reasonable’ in light of the totality of the facts and circumstances.” Lynn ».

Schertzberg, 169 Fed. Appx. 666, 669 (3d Cir. 2006) (citing Kopec ». Tae, 361 F.3d 772, 776 (3d Cir. 2004). Factors that the court should consider include (1) the severity of

the crime at issue, (2) whether the suspect poses an immediate threat to the safety of

the officers and others, (3) whether the action takes place in context of effecting an

arrest and suspect is actively resisting arrest or attempting to evade arrest by flight, (4) the duration of the action, (5) the possibility that the suspect may be armed, and

(6) the number of persons with whom the police officers must contend at one time

(“the Graham and Sharrar factors”). See Graham, 490 U.S. at 396; and Sharrar v. Felsing, 24

128 F.3d 810, 822 (3d Cir. 1997). See also Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004). It is undisputed that Perez resisted arrest by attempting to leave the scene after

Cuneo advised him that he was taking him into custody. Perez’ resistance triggered Cuneo’s tight and authority to use force to effectuate the arrest. But, as detailed

below, disputed issues of fact remain regarding the reasonableness of the force Cuneo

chose to use against Perez.

a. Cuneo’s initial use of his taser.

The disputed issues of fact in this case include whether Cuneo gave any verbal

warnings to Perez before Cuneo first used his taser on him. Petez says that after he

questioned Cuneo’s authority to arrest him on the DNA search warrant and refused to go with Cuneo, he proceeded to “jog” actoss the street. He further asserts that

Cuneo then fited his taser at him without warning. ECF 57-2, p. 20. In contrast, Cuneo contends that he specifically told Perez that he would “tase” him if he did not

stop and fited his taser only after Perez failed to comply. This dispute is material. See

Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 2010) (noting that an officer’s use of

force was unreasonable when he did not provide a warning before deploying the

taset). As one district court within this Circuit observed, “[w]hether warnings were

given prior to tasing is important to showing whether this use of force was

appropriate.” Geist v. Ammary, 40 F. Supp. 3d 467, 480-81 (E.D. Pa. 2014) (citing

Brown v. Cwynar, 484 Fed. Appx. 676 (3d Cir. 2012) (use of a taser on plaintiff during atrest 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) (finding that arresting officer’s tasering of a handicapped individual was appropriate after the plaintiff was watned that he might be tasered and the plaintiff responded, “Go ahead and taser me.”) (footnote omitted)).

Certain of the Graham and Sharrar factots also weigh against this Court finding Cuneo’s initial use of his taser reasonable as a matter of law. When Cuneo initially apptoached Perez, he had observed nothing to support a belief that Perez was then

involved in any setious crime. The only conduct Cuneo observed was Perez walking down the street. While Perez was a suspect in a burglary investigation, apparently no

finding of “probable cause” for his arrest had been made as no warrant for his arrest

had been issued. The current record also does not support that Cuneo had reason to

believe that Perez represented an immediate threat to his safety or the safety of others

when he declined to accompany Cuneo and attempted to leave the scene. Similarly, Defendants have not offered any evidence to support that Cuneo had reason to

believe that Perez was atmed. On the other hand, Cuneo’s action did take place in

context of effecting an arrest, and Perez did actively resist arrest and attempt to evade

attest by flight. Given these competing and conflicting considerations, the

reasonableness of Cuneo’s initial use of his taser is an issue that must remain for the

jury.

b. Cuneo’s subsequent uses of his taser

Cuneo’s subsequent uses of his taser presents a closer call. The video evidence clearly shows that after Perez fell to the ground, his hands were initially concealed beneath his chest despite Cuneo’s repeated instructions to place them behind his

back. Although Cuneo may have had no reason to believe Perez was armed, he did

not know with any certainty he was not, and demanding that a resisting arrestee’s hands be made visible is a facially reasonable measure to protect the safety of the

officer. Perez contends that his injuries and the initial shock of the taser prevented him from complying, but Cuneo would not necessarily have known this to be the

case. Because a given use of force must be evaluated from the perspective of the

officer, Cuneo’s repeated use of his taser may be viewed as teasonable under these

circumstances. On the other hand, Perez asserts that Cuneo should have recognized that he was attempting to comply and surrender when Cuneo repeatedly shocked him

with his taser. He also emphasizes the prolonged duration of the shocks administered by Cuneo which literally exhausted the battery of his taser.

Given the conflicts in the testimony of Cuneo and Perez and the inconclusive

nature of the video evidence, the Court also finds that the reasonableness of Cuneo’s

subsequent uses of his taser also constitutes a matter for the jury. 27

c. Cuneo’s use of his retractable baton

This same analysis and conclusion apply to Cuneo’s use of his retractable

baton. By the time Cuneo used his baton, his interaction with Cuneo was completely out of view of his taser camera. Thus, there is no video evidence regarding what

precipitated Cuneo’s use of his baton or how he used it. Cuneo asserts that he used

his baton in an attempt to fend off Perez’ attacks against him and gain control of him.

In contrast, Perez asserts that he did not attack or strike Cuneo and that it was Cuneo

who repeatedly struck him in the head with his baton without justification. Once

again, the Coutt is unable to resolve these factual disputes on summary judgment.

d. Cuneo’s discharge of his firearm

The facts and circumstances sutrounding Cuneo’s use of his gun to shoot Perez

ate even more shapely in dispute. Cuneo asserts that he resorted to deadly force only after Cuneo assaulted him to the point that he feared he might lose consciousness of

Petez might gain complete control over him and possibly even obtain his gun. In

contrast, Perez asserts that he was fleeing Cuneo’s unwarranted assault upon him and

was approximately 12-20 feet away when Cuneo shot him in the back. The third-

patty witness, Thomas Costanzo, places Perez approximately 10-15 feet away from

Cuneo when Cuneo shot him. These material discrepancies plainly preclude this

Coutt from finding as a matter of law that Cuneo’s use of his gun to shoot Perez was

reasonable. 28

D. — Cuneo is Entitled to Qualified Immunity Only as to His Use of His Taser and Baton.

Qualified immunity is “an entitlement not to stand trial or face the burdens of

litigation.” Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472

U.S. 511, 526 (1985)). Under this doctrine, a government official is immune from

claims for damages unless the record, viewed in the light most favorable to plaintiff, shows (1) that the official violated the plaintiffs constitutional rights, and (2) that the

constitutional right that was violated was clearly established. Id. at 201; Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982) (“[G]overnment officials performing discretionary functions ... ate shielded ftom liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable

petson should have known.”). A tight is considered clearly established if it 1s

“sufficiently clear that every reasonable official would have understood that what he is

doing violates that tight.” Reichle v. Howards, 566 U.S. 658 (2012) (alterations omitted);

see also Mullenix v. Luna, 577 U.S. 7, 11-12 (2015). In the context of a case alleging a police officer’s illegal arrest or use of

excessive force, the court must “identify the right at issue and determine if that right

was cleatly established at the time of the officer’s action.” Estep v, Mackey, 639 Fed.

Appx. 870, 873 (3d Cir. 2016). “With respect to the first task, courts ‘must define the

tight allegedly violated at the appropriate level of specificity.” Id. (quoting Sharp v.

Johnson, 669 F.3d 144, 159 (3d Cit.2012). Courts must resist the temptation to define

“clearly established law at a high level of generality.” Id. (remanding case where district

court defined right too generally as right to be free from excessive force) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741-42 (2011)). “Rather, the right at issue must be

framed ‘in a mote particulatized, and hence mote relevant, sense, in light of the case’s

specific context, not as a broad general proposition.” Estep, 639 Fed. Appx. at 873

(quoting Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 638 (3d Cir.2015) (quotation marks and citations omitted)). With these principles in mind, the Court turns to

Perez’ claims in this case.

1. Cuneo Is Not Entitled to Qualified Immunity on Perez’ Unlawful Arrest Claim. As to Perez’ illegal arrest claim, the right at issue is Perez’ right not to be seized

by the police without a warrant authorizing the seizure or the officet’s observation of

facts supporting probable cause to believe the person has committed a crime or at

least reasonable suspicion to believe he or she is engaged in criminal activity. This

right is embodied in the text of the Fourth Amendment itself, which was adopted by Congress as patt of the Bill of Rights on December 15, 1791. ‘This right has been

recognized as applicable to the states since 1961 when the Supteme Court decided

Mapp v. Ohio, supra. Even if the right is defined more specifically as Perez’ right to be

free from seizure pursuant to a search warrant executed outside of its specified limitations, that right has been clearly established since 1932 when the Supreme Court

decided Sgro v. United States, supra. Thus, Cuneo violated Petez’ clearly established

tights on November 20, 2017, when he arrested him without probable cause or actual

authority conferred by a warrant. 2. Cuneo is Entitled to Summary Judgment Based on Qualified Immunity With Respect to the Use of His Taser. As to Cuneo’s initial and subsequent uses of his taser, Perez has failed to show

that Cuneo violated a clearly established right. A right is clearly established if a

reasonable official would understand that what he is doing violates that right. a/-Kzdd, 563 US. at 741-42. The circumstances under which Cuneo used his taser are

sufficiently clear from the video evidence that the Court can determine qualified immunity on the existing record. See Scott v. Harris, 550 U.S. 372, 378 (2007) (holding that “the existence in the record of a videotape captuting the events in question” is

properly credited by the court in assessing whether a genuine issue of material fact

remains in a police excessive force case). The video in this case shows Perez fleeing after Cuneo placed him under arrest and Cuneo’s initial use of his taser to stop him.

The video later shows Perez face down on the ground with his hands initially concealed beneath his chest. Cuneo is heard demanding that Perez place his hands

behind his back and warning Perez that he will tase him if he does not comply. The

video then shows Perez failing to comply and Cuneo engaging his taser.

“The ‘clearly established’ standard ... requites that the legal principle clearly prohibit the officer’s conduct in the particular circumstances before him.” D.C. ».

Wesby, U.S. __, 138 S. Ct. 577, 590 (2018). Perez has not cited any controlling

authority holding that the use of a taser to intercept and subdue a fleeing arrestee constitutes excessive force, and the Court has identified no such authority. Perez

disputes Cuneo’s assertion that he warned him before tasing him and, if a jury were to

believe Perez, the jury could find that Cuneo’s initial use of the taser was unteasonable. But this does not defeat qualified immunity because no controlling authority established the illegality of using a taser without watning as of November 20, 2017. See Saucier, 533 U.S. at 204 (“The inquiries for qualified immunity and excessive force remain distinct.”). It has been said that qualified immunity provides police officers “ample room for mistaken judgments” by protecting “all but the plainly incompetent or those who knowingly violate the law.”

Messerschmidt v. Millender, 565 U.S. 535, 545-46 (2012) (quoting Maly v. Briggs, 475 U.S.

335, 341 (1986)). See also Bello, 2013 WL 53981, at *6. That protection extends to

Cuneo’s initial use of his taser. It also extends to his subsequent uses of his taser. “As

of November 20, 2017, no controlling authority established that repeated or extended

discharge of a taser to compel compliance with police instructions violated the Fourth

Amendment's proscription against excessive force. The Coutt has identified no

Supreme Court precedent to support such a proposition, and the Court of Appeals for the Third Circuit has expressly declined to speak in a precedential opinion about

taset use. Estep, 639 Fed. Appx. 870, 874 n.4. Cf Brown, 484 Fed. Appx. 676 (3d Cir.

2012) (recognizing that “multiple courts of appeals had approved the use of taser guns

to subdue individuals who resist arrest ot refuse to comply with police orders”) (citing 32

Draper v. Reynolds, 369 F.2d 1270, 1278 (11th Cir. 2004); (Hinton v. City of Elwood, 997 F.2d 774, 781 (10th Cir. 1993) (approving use of a stun gun to overcome a suspect’s resistance to attest). Because no controlling authority clearly demonstrated the illegality of Cuneo’s use of his taser under the citcumstances presented, he is entitled

to qualified immunity on this aspect of Perez’ excessive force claim.

3. Cuneo is Entitled to Summary Judgment Based on Qualified Immunity With Respect to His Repeated Striking of Perez With His Baton. An officet’s use of a baton to strike a person resisting arrest has been recognized as a reasonable means to obtain his ot her compliance. See e.g, Santini v.

Fuentes, 739 Fed. Appx. 718, 721 (3d Cir. 2018) (affirming summary judgment based

on qualified immunity in a 2009 arrest of a non-suspect witness who was peppet- sptayed and struck with nightsticks prior to being handcuffed when he appeared to be

resisting). The Court recognizes that Cuneo and Perez’ versions of the facts

surrounding Cuneo’s use of his baton differ in certain respects and that a

determination of the reasonableness of that force may turn on resolution of these

differences. But it is undisputed that Perez was either engaged in a physical struggle with Cuneo or was actively evading arrest. Again, Perez has not cited, and the Court

has not identified, any controlling authority to support that Cuneo’s use of his baton

to repeatedly strike Perez under either circumstance was unconstitutional as of

November 20, 2017. Accordingly, while issues of fact remain concerning the

reasonableness of Cuneo’s use of his baton, they are not material for purposes of the 33

qualified immunity analysis. Cuneo is entitled to qualified immunity with respect to this aspect of his excessive force claim. 4, Genuine Issues of Material Fact Remain as to Whether Cuneo’s Use of His Gun Violated Clearly Established Law. Supreme Coutt case law applicable to an assessment of the reasonableness of Cuneo’s shooting of Perez was clearly established long before November 20, 2017:

“(I]t is unreasonable for an officer to ‘seize an unarmed, nondangerous suspect by shooting him ... [bJut ‘[w]here the officer has probable cause to believe that the

suspect poses a threat of serious physical hatm, either to the officer or to others, it is

not constitutionally unreasonable to prevent escape by using deadly force.” Brosseau v,

Haugen, 543 U.S. 194, 197-98 (2004) (internal citation omitted) (citing Tennessee v.

Garner, 471 U.S. 1 (1985), and Graham v. Connor, 490 U.S. 386 (1989)). The problem the Court faces in this case is it cannot determine which of these two clearly established propositions of law applies because the facts are sharply in dispute. According to Perez, he was an unarmed, nondangerous individual fleeing from an

unlawful arrest when Cuneo shot him in the back. In contrast, Cuneo asserts that

Perez was not just resisting arrest but aggressively attacking him with such ferocity that he feared for his life, prompting him to resort to deadly force. These disputes of

fact are genuine and clearly material. Accordingly, Cuneo’s request for summary judgment based on qualified immunity must be denied as to his shooting of Perez.

E. The Borough of Johnsonbutg is Entitled to Summary Judgment on Perez’? Monell Claim. Although not identified as a specific count, the allegations of Perez’ Amended

Complaint raise a municipal liability claim against the Borough of Johnsonburg (Borough). See ECF No. 9, {] 63-67. A municipal entity such as the Borough cannot

be held liable for its employee’s alleged constitutional violations based on a theory of

respondeat superior. Monell v. Dep’t Soc. Servs. of City of New York, 436 U.S. 658, 691-95

(1978); Panas v. City of Phila., 871 F. Supp. 2d 370, 377-78 (E.D. Pa. May 14, 2012). Rather, the “government itself, through its policies or practices, must be sufficiently culpable before” it can be held liable under § 1983. Panas, 871 F. Supp. 2d at 377-78.

Such culpability exists only “when the alleged constitutional transgression implements

ot executes a policy, regulation, or decision officially adopted by the governing body

ot informally adopted by custom.” MeTernan v. City of York, 564 F.3d 636, 657 (3d Cit.

2009) (quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)). Merely alleging the existence of a policy, practice, or custom is not enough. Rizzo ». Goode, 423 U.S. 362, 371 (1976). A plaintiff in a § 1983 action must show an “affirmative

link” between the occurrence of alleged misconduct and the municipality’s policy, custom, or practice. Id. Accordingly, “[o]nce a plaintiff has identified a policy or

custom, [he or] she ‘must show that the municipal action was taken with the requisite degree of culpability, and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.”’ Abran v. City of Phila., 2020 WL 6781938,

at *12 (E.D. Pa. Nov. 17, 2020) (quoting Vulcan Pioneers of New Jersey v. City of Newark, 374 Fed. Appx. 313, 317 (3d Cir. 2010)). If the policy does not facially violate federal law, “causation can be established only by ‘demonstrat[ing] that the municipal action

was taken with ‘deliberate indifference’ as to its known or obvious consequences.” Id. (quoting Berg v. Cty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000)). Thus, in order

to impose liability on a local governmental entity for failing to act to preserve constitutional rights, a § 1983 plaintiff must establish not only that he or she was deprived of a constitutional right, but that: (1) the municipality had a policy; (2) the

policy “amounts to deliberate indifference” to the plaintiffs constitutional right; and

(3) the policy was the “moving force behind the constitutional violation.” Weber v.

Erie Cyy., 2020 WL 5983275, at *5 (W.D. Pa. Oct. 8, 2020) (quoting City of Canton, Ohio

v. Harris, 489 U.S. 378, 389-91 (1989)). Perez contends that the Borough failed to “implement training policies and

procedures to keep officers from using excessive force” and that it “knew its officers

would frequently fail to follow the already inadequate procedures prior to the use of

force against” Perez. ECF No. 9, § 64. The Supreme Coutt has also recognized that

a local government’s “culpability for a deprivation of rights is at its most tenuous

where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). “If the alleged policy or custom at issue is a failure to train or supervise (as it is here), the plaintiff must show that this failure ‘amounts to ‘deliberate indifference’ to the

tights of persons with whom [the municipality's] employees will come into contact.” 36

Johnson v. City of Phila., 975 F.3d 394, 403 (3d Cir. 2020) (quoting Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)), “[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor distegarded a known or obvious

consequence of his action.” Connick, 563 U.S. at 61 (quoting Board of County Com’rs of Bryan Cyy. v. Brown, 520 U.S. 397, 410 (1997). Typically, a plaintiff meets this burden by identifying, “a pattern of similar constitutional violations by untrained employees” that “puts municipal decisionmakets on notice that a new program is necessaty....” Johnson, 975 F.3d at 403 (quoting Thomas, 749 F.3d at 223). “Otherwise, the plaintiff needs to show that failure

to provide the identified training would ‘likely ... result in the violation of constitutional rights’—~.., to show that ‘the need for more or different training [was] so obvious.” Id. (quoting City of Canton, 489 U.S. at 390). The Third Circuit applies a three-part test to determine whether “a municipality's failure to train or supervise amount|s] to deliberate indifference.” Carter. 181 F.3d at 357. A plaintiff must plead: (1) municipal policymakers know that employees will confront a particular situation; (2) the situation involves a difficult choice or a history of employees mishandling; and (3) the wtong choice by an employee will frequently cause deprivation of constitutional rights.” Id.; see also Thomas v. Cumberland Cty., 749 F.3d 217 at 224-25 (3d Cir. 2014) (quoting Board of County Com’rs of Bryan Cty., 520 U.S. at 409). (“Liability in single-incident cases depends on ‘[t}he likelihood that the situation will recur and

the predictability that an officer lacking specific tools to handle that situation will violate citizens’ rights”). In the present case, Perez has not identified facts to support any of the elements of municipal liability under Mone// and its progeny. He has not alleged facts

to show a history or pattern of police misconduct compatable to that alleged against Cuneo. Nor has he identified a policymaker who was allegedly on notice of such a history ot pattern and displayed deliberate indifference to it. The record does not

support a finding that the Borough maintained a policy or custom of deliberate indifference to police misconduct or a deliberately indifferent failure to train officers in the face of a clear need to do so. ‘Thus, Perez has failed to establish a genuine dispute of material fact concerning his Mone// claim and, therefore, the Borough is entitled to judgment as a matter of law.

VI. Conclusion Based on the record and applicable law, Defendants’ motion for summary judgment must be denied as to Perez’ Fourth Amendment illegal seizure/atrest claim. Disputed issues of fact also remain as to the reasonableness of Cuneo’s use of his

taser and baton during his encounter with Perez, but Cunco is nevertheless entitled to

summaty judgement on these aspects of Perez’ excessive force claim based on qualified immunity. As to Cuneo’s use of his firearm to shoot Perez in the back, genuine issues of material fact preclude summary judgment for Cuneo on the issue of reasonableness

as well as qualified immunity. Finally, no genuine issue of material fact remains concerning Perez’ municipal lability claim against the Borough of Johnsonburg, and that Defendant is entitled to judgment as a matter of law. An appropriate Order will follow. BY THE COURT:

□ . FF oe HON. RICHARD A. HANZILLO Dated: July 23, 2021 United States Magistrate Judge