ALD-060 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 20-2402 ___________
RICHARD DESABETINO, Appellant
v.
OFFICER SEAN BIAGINI; OFFICER MICHAEL SNIDER; OFFICER JOHN SYMSEK; OFFICER WILLIAM KELLY ____________________________________
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2-16-cv-00341) Magistrate Judge: Honorable Cynthia R. Eddy ____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 December 30, 2020
Before: McKEE, GREENAWAY, JR. and BIBAS, Circuit Judges
(Opinion filed February 10, 2021) _________
OPINION* _________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pro se appellant Richard Desabetino appeals from the District Court’s order
granting summary judgment in favor of the defendants in a civil rights action that he
brought pursuant to 42 U.S.C. § 1983. For the reasons discussed below, we will
summarily affirm.
I.
Because we write primarily for the parties, we will recite only the facts necessary
for our discussion. On August 6, 2014, Officer Sean Biagini of the Baldwin Borough
Police Department attempted to serve a warrant for the arrest of Desabetino and his
girlfriend, Amy Calabrese, based on their theft of bicycles. Officer Biagini went to
Calabrese’s home, where Desabetino was also present. When Officer Biagini asked
Desabetino for identification, Desabetino went to his car. Officer Biagini attempted to
stop Desabetino from getting into the vehicle by trying to shut the door. Officer Michael
Snider arrived as backup, and the officers engaged in a struggle with Desabetino from the
driver’s side window as they attempted to prevent him from starting the vehicle.
Officer Biagini was on the vehicle’s running board and Officer Snider was in front
of the vehicle when Desabetino began driving forward. Officer Biagini fell backward, hit
his head on the ground, and became unconscious. At the same time, Officer Snider fired
a shot that hit the windshield. He then rolled out of the way of the moving vehicle and
fired another shot that hit the gas tank. Desabetino fled the scene, drove towards South
Park Township, and stole a green Oldsmobile Cutlass from Grandview Place.
2 Officer Symsek received information that there had been an officer-involved
shooting, that an officer was injured, and that the suspect had fled towards South Park.
Officer Symsek later received another call regarding the stolen Oldsmobile and saw a
vehicle matching the description. He immediately fired his patrol rifle at the vehicle 10
times. Although the vehicle was damaged, Desabetino continued driving with numerous
police vehicles in pursuit. At an intersection, Desabetino collided with a pickup truck
and a white Chevrolet. Officer Kelly witnessed the crash and saw Desabetino remove
someone from the white Chevrolet and start to drive away in it. Officer Kelly fired twice
at Desabetino, hitting him once in the back. Desabetino then surrendered to police.
Desabetino was criminally prosecuted in Allegheny County and was convicted of
numerous offenses, including aggravated assault and recklessly endangering Officers
Biagini and Snider. Desabetino was acquitted on a charge of aggravated assault against
Officer Symsek.
In March 2016, Desabetino filed his complaint in the District Court, raising Fourth
Amendment excessive force claims against Officers Biagini, Snider, Symsek, and Kelly.
The Magistrate Judge, proceeding with the consent of the parties, granted the defendants’
motions for summary judgment, determining that each officer’s use of force was
objectively reasonable under the circumstances. In the alternative, the Magistrate Judge
determined that even if a reasonable jury could conclude that any force was excessive,
the officers were entitled to qualified immunity. This appeal ensued.
3 II.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over
the District Court’s order granting summary judgment. See Kaucher v. County of Bucks,
455 F.3d 418, 422 (3d Cir. 2006). Summary judgment is proper when, viewing the
evidence in the light most favorable to the nonmoving party and drawing all inferences in
favor of that party, there is no genuine dispute as to any material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Kaucher, 455 F.3d
at 422–23. We may summarily affirm on any basis supported by the record if the appeal
fails to present a substantial question. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir.
2011) (per curiam); Third Circuit LAR 27.4 and I.O.P. 10.6.
III.
Under the Fourth Amendment, the amount of force used to effectuate an arrest
must be “objectively reasonable” based on the “totality of the circumstances.” Abraham
v. Raso, 183 F.3d 279, 289 (3d Cir. 1999). In determining whether the amount of force
was reasonable, we consider the “‘severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officer or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.’” Id. (quoting Graham v. Connor,
490 U.S. 386, 396 (1989)). An officer’s use of deadly force is excessive when it is not
“objectively reasonable for the officer to believe, in light of the totality of the
circumstances, that deadly force was necessary to prevent the suspect’s escape, and that
4 the suspect posed a significant threat of death or serious physical injury to the officer or
others[.]” Id.
Here, we agree with the District Court’s determination that no reasonable juror
could find that the force used by Officer Biagini was excessive.1 It is beyond dispute
that, in the course of executing a warrant for Desabetino’s arrest, it was objectively
reasonable for Officer Biagini to determine that Desabetino was attempting to evade
arrest by flight. The force that Officer Biagini used to prevent Desabetino from fleeing in
his vehicle, resulting in no serious injuries, was not excessive under the circumstances.
Similarly, the non-deadly force that Officer Snider initially used to assist Officer Biagini
in the struggle with Desabetino was objectively reasonable under the circumstances.
We will affirm the remainder of the District Court’s grant of summary judgment in
favor the defendants on qualified immunity grounds. Qualified immunity shields
government officials “from liability for civil damages insofar as their conduct does not
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ALD-060 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 20-2402 ___________
RICHARD DESABETINO, Appellant
v.
OFFICER SEAN BIAGINI; OFFICER MICHAEL SNIDER; OFFICER JOHN SYMSEK; OFFICER WILLIAM KELLY ____________________________________
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2-16-cv-00341) Magistrate Judge: Honorable Cynthia R. Eddy ____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 December 30, 2020
Before: McKEE, GREENAWAY, JR. and BIBAS, Circuit Judges
(Opinion filed February 10, 2021) _________
OPINION* _________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pro se appellant Richard Desabetino appeals from the District Court’s order
granting summary judgment in favor of the defendants in a civil rights action that he
brought pursuant to 42 U.S.C. § 1983. For the reasons discussed below, we will
summarily affirm.
I.
Because we write primarily for the parties, we will recite only the facts necessary
for our discussion. On August 6, 2014, Officer Sean Biagini of the Baldwin Borough
Police Department attempted to serve a warrant for the arrest of Desabetino and his
girlfriend, Amy Calabrese, based on their theft of bicycles. Officer Biagini went to
Calabrese’s home, where Desabetino was also present. When Officer Biagini asked
Desabetino for identification, Desabetino went to his car. Officer Biagini attempted to
stop Desabetino from getting into the vehicle by trying to shut the door. Officer Michael
Snider arrived as backup, and the officers engaged in a struggle with Desabetino from the
driver’s side window as they attempted to prevent him from starting the vehicle.
Officer Biagini was on the vehicle’s running board and Officer Snider was in front
of the vehicle when Desabetino began driving forward. Officer Biagini fell backward, hit
his head on the ground, and became unconscious. At the same time, Officer Snider fired
a shot that hit the windshield. He then rolled out of the way of the moving vehicle and
fired another shot that hit the gas tank. Desabetino fled the scene, drove towards South
Park Township, and stole a green Oldsmobile Cutlass from Grandview Place.
2 Officer Symsek received information that there had been an officer-involved
shooting, that an officer was injured, and that the suspect had fled towards South Park.
Officer Symsek later received another call regarding the stolen Oldsmobile and saw a
vehicle matching the description. He immediately fired his patrol rifle at the vehicle 10
times. Although the vehicle was damaged, Desabetino continued driving with numerous
police vehicles in pursuit. At an intersection, Desabetino collided with a pickup truck
and a white Chevrolet. Officer Kelly witnessed the crash and saw Desabetino remove
someone from the white Chevrolet and start to drive away in it. Officer Kelly fired twice
at Desabetino, hitting him once in the back. Desabetino then surrendered to police.
Desabetino was criminally prosecuted in Allegheny County and was convicted of
numerous offenses, including aggravated assault and recklessly endangering Officers
Biagini and Snider. Desabetino was acquitted on a charge of aggravated assault against
Officer Symsek.
In March 2016, Desabetino filed his complaint in the District Court, raising Fourth
Amendment excessive force claims against Officers Biagini, Snider, Symsek, and Kelly.
The Magistrate Judge, proceeding with the consent of the parties, granted the defendants’
motions for summary judgment, determining that each officer’s use of force was
objectively reasonable under the circumstances. In the alternative, the Magistrate Judge
determined that even if a reasonable jury could conclude that any force was excessive,
the officers were entitled to qualified immunity. This appeal ensued.
3 II.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over
the District Court’s order granting summary judgment. See Kaucher v. County of Bucks,
455 F.3d 418, 422 (3d Cir. 2006). Summary judgment is proper when, viewing the
evidence in the light most favorable to the nonmoving party and drawing all inferences in
favor of that party, there is no genuine dispute as to any material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Kaucher, 455 F.3d
at 422–23. We may summarily affirm on any basis supported by the record if the appeal
fails to present a substantial question. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir.
2011) (per curiam); Third Circuit LAR 27.4 and I.O.P. 10.6.
III.
Under the Fourth Amendment, the amount of force used to effectuate an arrest
must be “objectively reasonable” based on the “totality of the circumstances.” Abraham
v. Raso, 183 F.3d 279, 289 (3d Cir. 1999). In determining whether the amount of force
was reasonable, we consider the “‘severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officer or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.’” Id. (quoting Graham v. Connor,
490 U.S. 386, 396 (1989)). An officer’s use of deadly force is excessive when it is not
“objectively reasonable for the officer to believe, in light of the totality of the
circumstances, that deadly force was necessary to prevent the suspect’s escape, and that
4 the suspect posed a significant threat of death or serious physical injury to the officer or
others[.]” Id.
Here, we agree with the District Court’s determination that no reasonable juror
could find that the force used by Officer Biagini was excessive.1 It is beyond dispute
that, in the course of executing a warrant for Desabetino’s arrest, it was objectively
reasonable for Officer Biagini to determine that Desabetino was attempting to evade
arrest by flight. The force that Officer Biagini used to prevent Desabetino from fleeing in
his vehicle, resulting in no serious injuries, was not excessive under the circumstances.
Similarly, the non-deadly force that Officer Snider initially used to assist Officer Biagini
in the struggle with Desabetino was objectively reasonable under the circumstances.
We will affirm the remainder of the District Court’s grant of summary judgment in
favor the defendants on qualified immunity grounds. Qualified immunity shields
government officials “from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified
immunity applies unless: (1) the facts alleged by the plaintiff show the violation of a
constitutional right; and (2) the law was clearly established at the time of the violation.
See Pearson v. Callahan, 555 U.S. 223, 232 (2009). “Thus, qualified immunity protects
1 The District Court properly determined that Desabetino’s excessive force claims were not barred by Heck v. Humphrey, 512 U.S. 477, 485–87 (1994), as his claims were not automatically precluded by his convictions here. See El v. City of Pittsburgh, 975 F.3d 327, 339 (3d Cir. 2020); Nelson v. Jashurek, 109 F.3d 142, 145 (3d Cir. 1997). 5 all but the plainly incompetent or those who knowingly violate the law.” Bland v. City of
Newark, 900 F.3d 77, 83 (3d Cir. 2018) (quotation marks and citations omitted).
Here, Officers Snider, Symsek, and Kelly are entitled to qualified immunity on the
remaining claims. “The Supreme Court has consistently held that officers either did not
violate the Fourth Amendment or were entitled to qualified immunity when they used
deadly force during” a dangerous car chase. Id. at 83–84; see also Mullenix v. Luna, 577
U.S. 7, 15 (2015) (observing that the Supreme Court has “never found the use of deadly
force in connection with a dangerous car chase to violate the Fourth Amendment, let
alone to be a basis for denying qualified immunity”). Following the Supreme Court’s
teachings, we held in Bland that certain officers were entitled to qualified immunity for
firing at a fleeing suspect when his “behavior threatened the safety of the officers, as well
as the public at large.” 900 F.3d at 84. The suspect “drove at high speeds,” “failed to
comply with orders to surrender,” and “repeatedly attempted to flee . . . including by
trying to drive with officers standing in close proximity to [his vehicle].” Id. “And he
engaged in all of this behavior in a vehicle that had been reportedly” stolen. Id.
The undisputed facts here are similar to those in Bland, and Officers Snider,
Symsek, and Kelly similarly did not violate any clearly established constitutional right.
Before Officer Snider fired his weapon, Desabetino had attempted to flee, failed to
comply with orders to surrender, and assaulted Officers Snider and Biagini. When
Officer Snider fired his weapon, Desabetino presented a danger by operating his vehicle
in close proximity to the officers, knocking Officer Biagini to the ground and threatening 6 to injure Officer Snider, who was in front of the vehicle. Officer Symsek fired at
Desabetino in the course of a dangerous car chase, after receiving reports that Desabetino
had resisted arrest, injured officer Biagini, and stolen a vehicle. See Plumhoff v. Rickard,
572 U.S. 765, 777 (2014) (concluding that officers did not act unreasonably in firing 15
shots when suspect “never abandoned his attempt to flee” and “even after all the shots
had been fired, he managed to drive away and to continue driving until he crashed”).
Desabetino obviously posed a threat to the safety of the public when Officer Symsek
fired at him, and Desabetino soon collided with two other vehicles. Desabetino was still
in dangerous flight, and in the process of stealing another vehicle, when Officer Kelly
fired the final two shots that ended Desabetino’s flight. Thus, the use of force by Officers
Snider, Symsek, and Kelly did not violate any of Desabetino’s clearly established
constitutional rights, and the officers are entitled to qualified immunity.
For the foregoing reasons, we will summarily affirm the District Court’s
judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.2
2 In light of our disposition, we deny Desabetino’s motion for appointment of counsel. See Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993). 7