the use of deadly force to do so. . . . The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.
It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
Id. at 11-12 (emphasis added).
This standard enunciated by the Garner Court echoes § 508, perhaps not surprisingly, given the Court's statement that "in evaluating the reasonableness of police procedures, we have . . . looked to prevailing rules in individual jurisdictions." Id. at 15-16. As evidence of an impressive trend away from the permissive Tennessee rule, the Court cited laws in eighteen states that permitted the use of deadly force only when the suspect is likely to endanger life or inflict serious injury if not arrested. One of these statutes noted with apparent favor was Pennsylvania's § 508. See id. at 17 n.18.
Thus, while the precise constitutional basis for excessive force claims was in some flux at the time of the events in question,
the clear constitutional parameters for use of deadly force-- whether incorporated into a substantive due process test or a Fourth Amendment reasonableness test-- were the standards set forth in § 508 and given constitutional pedigree by the Supreme Court two months before the bomb was dropped on the MOVE residence. Therefore, in this case the relevant question for qualified immunity purposes is whether a reasonable person in each defendant's position could have believed that use of a bomb and/or the decision to let the fire burn was necessary to "prevent death or serious bodily injury" to the police officers on the scene or other persons.
The Conduct of the Defendants
Notwithstanding that defendants should have been aware of the governing legal principles embodied in § 508 and Garner, this does not end the qualified immunity inquiry. Defendants are "nevertheless entitled to immunity if based on the information available to them they could have believed their conduct would be consistent with those principles." Good, 891 F.2d at 1092. On defendants' view, Magistrate Judge Hall's recommendation to defer the qualified immunity determination until presentation of the conflicting factual accounts at trial wrongfully abdicates judicial responsibility. As a general matter, it is true that qualified immunity is a legal question for the court, not for the jury; Hunter v. Bryant, U.S. ; 112 S. Ct. 534, 537, 116 L. Ed. 2d 589 (1991); see also Sims v. Metropolitan Dade County, 972 F.2d 1230, 1233 (11th Cir. 1992); Alvarado v. Picur, 859 F.2d 448, 451 (7th Cir. 1988); however, it may be impossible to make a determination of "objective reasonableness" in a void, without first making some preliminary determination as to what conduct the defendants engaged in and what information they actually possessed at the time.
It has long been practice at the summary judgment stage to refrain from deciding genuine questions of fact. See, e.g., Potter v. Columbia Broadcasting System, Inc., 368 U.S. 464, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962). On the other hand, the Court "repeatedly has stressed the importance of resolving immunity questions at the earliest possible stage in litigation."
Hunter, 112 S. Ct. at 536. Therefore, in deciding whether a defendant is entitled to qualified immunity at the summary judgment stage, the difficult task is to square the normal rules pertaining to summary judgment-- under which the court typically must allow a case to proceed to trial whenever there is sufficient evidence such that a reasonable jury could find in favor of the nonmovant-- with the Supreme Court's repeated, and increasingly clear, admonitions that qualified immunity should, wherever possible, be decided in advance of trial.
Its stated preference for prompt judicial resolution of qualified immunity question notwithstanding, the Court, when discussing its favored approach to qualified immunity in the summary judgment context, has often simply restated the normal summary judgment standard, emphasizing that defendant is entitled to summary judgment only if "discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts." Mitchell, 472 U.S. at 526. Consistent with this approach, the Third Circuit has repeatedly indicated that summary judgment should not be granted when there is a genuine issue of fact about immunity. E.g., Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992); Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990), cert. denied, U.S. , 111 S. Ct. 2827, 115 L. Ed. 2d 997 (1991); Good, 891 F.2d at 1096-7.
However, it is worth stressing that the qualified immunity question should not be deferred simply because there is a dispute over what actually happened on May 13, 1985, or as to the conclusion a juror could reasonably reach with respect to the Fourth Amendment reasonableness of defendants' conduct. As the Court made clear in Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987), the questions of whether defendant's conduct was reasonable under the Fourth Amendment and whether he acted reasonably for qualified immunity purposes are not interchangeable. Employing what Justice Stevens, in dissent, termed a "double standard of reasonableness," Anderson, 438 U.S. at 648 (Stevens, J., dissenting), the Court noted that even though the Fourth Amendment is also phrased in reasonableness terms, qualified immunity differs because it is designed to avoid liability even where the official may not have complied with the Fourth Amendment but could reasonably have believed at the time that he did. 483 U.S. at 643-44. Because the crucial concern in the qualified immunity context is what the official could reasonably have perceived the reality to be, Gooden v. Howard, 954 F.2d 960, 965 (4th Cir. 1992), a qualified immunity determination should be reserved only where resolution of what actually happened is necessary to decide whether the defendant official could reasonably have believed that his actions were lawful. Rainey v. Conerly, 973 F.2d 321, 323-24 (4th Cir. 1992); see also Hoffman v. Reali, 973 F.2d 980, 984 (1st Cir. 1992) (emphasis added) ("Absent dispute over essential underlying facts, a defendant's entitlement to qualified immunity is a question of law and is reserved for the court."). Additionally, given the important policy in favor of terminating insubstantial lawsuits against public officers, the court should be especially vigilant in enforcing the requirement that plaintiff substantiate her allegations in the complaint. See Butz, 438 U.S. at 508 (noting that in response to a motion for summary judgment, "plaintiffs may not play dog in the manger; and firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits"); Pueblo Neighborhood Health Centers Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988) (following Martin); Martin v. District o fColumbia Metropolitan Police Dept., 259 U.S. App. D.C. 31, 812 F.2d 1425, 1434 (D.C. Cir. 1987), vacated in part, 817 F.2d 144 (D.C. Cir. 1987), reinstated Bartlett on Behalf of Neuman v. Bowen, 263 U.S. App. D.C. 260, 824 F.2d 1240 (D.C. Cir. 1987) ("It is not the moving party's burden to disprove unsubstantiated claims of his opponent; that consideration has added force when, as in the area of concern in this case, the reasons for swiftly terminating insubstantial lawsuits are particularly strong.")
Therefore, the court must determine, on plaintiff's well-documented version of the facts, whether a reasonable officer in each defendant's position, to the extent that this defendant could be found to have some responsibility for the use of force in question, could have believed that the force employed was necessary to protect the safety of himself or others. See Good, 891 F.2d at 1092, 1094-95. If the answer to that question with respect to any of the defendants is in the affirmative, then summary judgment should be granted in his favor; by contrast, for those defendants to whom the answer is in the negative, summary judgment on qualified immunity grounds should be denied (though, it may be raised anew once facts are further developed and explored at trial).
Accordingly, I will remand this case to Magistrate Judge Hall so that he can apply the new standard discussed above, indicating on which parts of the record he is relying for plaintiff's version of the facts.
Additionally, Magistrate Judge Hall did not address defendants' efforts to dismiss plaintiff's First and Fourteenth Amendment claims and § 1985 conspiracy claim against them,
and he will have an opportunity to do so on remand.
ORDER - December 11, 1992, Filed; December 14, 1992, Entered
For the reasons given in the accompanying Memorandum, it is hereby ORDERED and DIRECTED that the Report and Recommendation will not be approved and adopted, and this case is remanded to Magistrate Judge Hall for further proceedings consistent with the accompanying Memorandum.
DECEMBER 8, 1992