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Hickenbottom v. Nassan

March 30, 2007

MICHAEL HICKENBOTTOM, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MICHAEL ELLERBE, PLAINTIFF,
v.
SAMUEL NASSAN, JUAN CURRY, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, JOHN DOE, RICHARD ROE, UNIDENTIFIED IN NAME AND NUMBER, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Conti, District Judge

MEMORANDUM ORDER

This action arises out of the shooting death of Michael Ellerbe, age twelve at the time of his death, in the course of the pursuit of Michael Ellerbe on foot by defendants Samuel Nassan ("defendant Nassan") and Juan Curry ("defendant Curry"), two Pennsylvania State Police Troopers (collectively "defendants"). The pursuit occurred after Michael Ellerbe fled from a stolen car stopped by defendants on December 24, 2002, in Uniontown, Pennsylvania. Plaintiff Michael Hickenbottom, the father of Michael Ellerbe, as personal representative of the Estate of Michael Ellerbe ("plaintiff"), asserts various constitutional and statutory claims pursuant to 42 U.S.C. §§ 1983 and 1985(3), as well as a number of pendant state tort claims. In this memorandum order, the court considers the motion for summary judgment (Doc. No. 68) filed by defendants with respect to all claims asserted against them by plaintiff. For the reasons that follow, after considering the joint statement of material facts, the motion, the submissions of the parties and the arguments of counsel at the oral hearing on the motion, the court will grant in part and deny in part defendants' motion.

I. PROCEDURAL BACKGROUND

Before this court can adequately set forth the factual background in this case, it must first resolve a number of procedural disputes that have arisen between the parties over the effect that certain requirements of the Federal Rules of Civil Procedure and this jurisdiction's local rules of court have on this court's discretion to consider a number of the documents submitted by plaintiff.

This case has an extensive procedural history reaching back over four years to the filing of the initial complaint on February 14, 2003. (Doc. No. 1). The discovery process in this case has been long and arduous. This court ordered the initial Rule 26(a) disclosures to be served in April and May 2004. (Doc. No. 17). After delays, the court signed an initial case management order on July 26, 2004, that set January 17, 2005, as the date for discovery cutoff. (Doc. No. 37). The cutoff date was extended several times until July 14, 2005. (Doc. Nos. 41, 44, 46). After numerous delays relating to expert testimony, this court on May 18, 2006, finally held a hearing on challenges to expert testimony. (Doc. No. 66). A few days after the hearing this court issued a case management order requiring the movant to file its summary judgment motion by June 19, 2006, and the opposing party to file its response by July 19, 2006. (Doc. No. 67). At the hearing on May 18, 2006, the court also stated that it would hear argument on the summary judgment motion on October 19, 2006. (Doc. No. 66).

Defendants filed a motion for summary judgment, (Doc. No. 68), a brief in support, (Doc. No. 69), a concise statement of facts, (Doc. No. 70), and an appendix, (Doc. No. 71), on June 19, 2006. Plaintiff then twice moved for and was granted extensions of time to file a response. (Doc. Nos. 73-74, 75, 77). On August 11, 2006, plaintiff filed his response to defendants' motion for summary judgment ("Response"), (Doc. No. 78), as well as his response to defendants' concise statement of facts with a number of exhibits attached. (Doc. No. 79). In their reply brief in support of motion for summary judgment ("Reply Brief"), defendants strongly objected to much of the record evidence submitted by plaintiff, arguing that his submissions of an unverified complaint, certain unsworn statements, and portions of certain expert affidavits should not be considered by this court. See Defs.' Rep. Br. (Doc. No. 83) at 1, 2 n.2, 5-6. On September 5, 2006, defendants filed the joint concise statement of material facts. (Doc. No. 84).

Plaintiff made no further attempts to submit materials or respond to defendants' Reply Brief prior to the October 19, 2006 hearing. At the hearing, this court addressed potential problems with many of plaintiff's factual submissions. Defendants' Response to Plaintiff's "Supplemental" Brief ("Defs.' Resp. to Pl.'s Suppl. Br."), Ex. A (summary judgment hearing transcript) at 3-10. This court informed the parties that briefs should be submitted on the merits of defendants' objections to plaintiff's factual submissions. Id. at 5, 39-42, 53-54.

Plaintiff's counsel argued at the hearing that the problems with the evidence could be cured. Id. at 5-6. He first argued that the law in this jurisdiction would allow the disputed material into evidence. Id. at 6. He asked the court for permission to cure the potential problem with an unsworn investigator's report of an interview of Melvin Duley ("Duley") by introducing the deposition of Duley into the record. Id. 6-7. Plaintiff's counsel stated that defendants were not prejudiced because they had the deposition in their possession previously and explained that he only received the deposition three days before the hearing "because of an administrative screw up. . . ." Id. at 7. He argued that the deposition "contradict[ed] every important aspect of the police officers' testimony . . . ." Id. at 7.

Plaintiff's counsel attempted to cure the admissibility problems with the challenged unsworn statements of several other witnesses by making legal arguments and submitting actual audiotapes of the interviews of the witnesses. Id. at 8-9. Counsel then turned the court's attention to statements made by defendant Nassan that were recorded in a police report prepared by another witness, Sergeant Baranowski. Id. at 10-11. Counsel claimed that the statements in the report contradicted essential elements of defendant Nassan's account of the incident. Id. at 11-12, 15. Although plaintiff's counsel said he had only learned about the police report one and one-half hours before the hearing, id. at 11-13, defendants' counsel pointed out that the report was in the record in defendants' appendix of exhibits. Id. at 13. Finally, plaintiff's counsel also attempted to explain the failure to include a verified affidavit or deposition from Sergeant Baranowski, rather then just the unverified complaint he submitted. Id. at 20. He stated that the deposition of Sergeant Baranowski had been delayed, id. at 20, and an affidavit was "en route." Id. at 22. The court noted that plaintiff's counsel had not sought an extension of discovery. Id. Defendants' counsel objected arguing that allowing plaintiff's counsel to admit new evidence or alter plaintiff's arguments would be unfair to defendants, particularly in light of the lengthy discovery process in this case. Id. at 30-32. This court concluded that briefs were required to address the evidentiary disputes. Id. at 34. Plaintiff was directed to file a brief with the court within twenty days explaining why each disputed piece of evidence should be considered and addressing whether plaintiff could still prevail even if the evidence were excluded. Id. at 34, 37-38, 42, 43, 53. Defendants were directed to file a response twenty-eight days afterwards. Id. at 41.

Both parties submitted the required briefs. (Doc. Nos. 87, 88). In order to resolve whether defendants' objections to the submissions of plaintiff should be sustained, this court must address three issues: 1) whether this court can consider the unsworn statements and the unverified complaint submitted by plaintiff, 2) whether plaintiff should be deemed to have admitted a number of the material facts set forth in defendants' concise statement of facts by reason of plaintiff's failure to comply with local rules of court that require a party opposing summary judgment to identify with specificity the basis for disputing the opposing party's material facts, and 3) whether plaintiff should be granted leave to submit the late-filed deposition of Duley and the affidavit of Sergeant Baranowski under Federal Rule of Civil Procedure 56(f) or under this court's discretionary powers under Federal Rules of Civil Procedure 6(b) and (d) and 16.

A. Admissibility of the Unsworn Statements and Unverified Complaint

On June 19, 2006, defendants filed their motion for summary judgment. On August 11, 2006, plaintiff filed his response and his response to defendants' concise statement of facts with seventeen exhibits attached in an appendix. Pl.'s Resp. to Stmt. of Facts (Doc. No. 79). The exhibits included sworn affidavits from four experts, sworn affidavits from two witnesses, both defendants' depositions, a copy of a federal district court unpublished opinion decision, the deposition of Pennsylvania State Police Trooper Scott D. Myers, and photographs of the scene. The exhibits also included an unverified copy of a complaint filed by Pennsylvania State Police Sergeant James E. Baranowski in another civil action in the United States District Court for the Western District of Pennsylvania. Plaintiff Appendix ("Pl.'s App."), Ex. A. Finally, the exhibits also included the unsworn statements of five other witnesses: Twila Evans at Exhibit H; Duley at Exhibit I; Angela Lee at Exhibit M; Trinea Jacobs Ramsey at Exhibit O; and Harold Bailey at Exhibit Q.

Plaintiff argues in his supplemental brief in opposition to defendants' motion for summary judgment that the five unsworn statements and the unverified complaint can be considered at the summary judgment stage because Federal Rule of Civil Procedure 56 ("Rule 56") only requires that evidence be admissible in content and not in the form required at trial. Plaintiff's Supplemental Brief in Opposition to Defendants' Motion for Summary Judgment ("Pl.'s Suppl. Br.") at 2. He argues that hearsay evidence can be "considered if the out-of-court declarant could later present that evidence through direct testimony, i.e., in a form that would be admissible at trial.'" Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Plaintiff asserts that the evidence in the unsigned statements and the unverified complaint could be presented at trial because the witnesses are local witnesses who are willing to testify to the substance of the contested materials. Id. at 4-5.

Defendants reply that a summary judgment motion may only be opposed by those materials specifically identified in Rule 56(c) and that the five unsworn statements and the unverified complaint do not fall under any of those categories. Defendants' Response to Plaintiff's "Supplemental Brief" ("Defs.' Resp. to Pl.'s Suppl. Br.") (Doc. No. 88) at 4-6. This court agrees that Rule 56 controls the kinds of material that may be considered by a district court in ruling on a motion for summary judgment and that unsworn statements or unverified complaints are not included in the materials that may be considered.

Rule 56(c) provides that a summary judgment motion shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c).

Plaintiff is correct that this rule does not require all evidence submitted in opposition in summary judgment to be in a form admissible at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The rule, however, does not allow evidence in any form to be considered. Id. Rather, the rule specifically provides the avenues by which inadmissible hearsay evidence can be submitted at the summary judgment stage. Id.

Plaintiff quotes the Supreme Court's statement in Celotex that the nonmoving party is not required to "produce evidence in a form that would be admissible at trial in order to avoid summary judgment." Pl.'s Suppl. Br. at 2 (quoting Celotex, 477 U.S. at 324). Yet, the Supreme Court explained that "Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Celotex, 477 U.S. at 324 (emphasis added). Celotex merely confirms, as do the other decisions cited by plaintiff, that an opposing party on a summary judgment motion may submit evidence in a form that would not be admissible at trial if it is submitted in a form listed in Rule 56(c). Id.; see Williams v. Borough of West Chester, Pa.,. 891 F.2d 458, 466 (3d Cir. 1989) ("[H]earsay evidence produced in an affidavit opposing summary judgment may be considered if the out-of-court declarant could later present that evidence through direct testimony . . . .") (emphasis added).

The contested materials here do not satisfy the requirements of 56(e)*fn1 so as to qualify as affidavits, the form of evidence listed in Rule 56(c) that they most closely imitate. An affidavit is "[a] written or printed declaration or statement of facts made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation." BLACK'S LAW DICTIONARY 58 (6th ed. 1990). Unsworn statements are too unreliable to satisfy Rule 56(e)'s requirements. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n.17 (1970) (an unsworn statement does not satisfy the requirements of FED. R. CIV. P. 56(e)); Woloszyn v. County of Lawrence, 396 F.3d 314 (3d Cir 2005) (affirming the district court's refusal to consider an unsworn statement in disposing of a summary judgment); Small v. Lehman, 98 F.3d 762, 765 n.5 (3d Cir. 1996) (unsworn statements do not meet the requirements of Rule 56(e)); Fowle v. C & C Cola Div. of ITT-Continental Baking Co., 868 F.2d 59, 67 (3d Cir. 1989) (same); see also Markel v. Board of Regents of University of Wisconsin, 276 F.3d 906, 912 (7th Cir. 2002); Chaiken v. VV Pub. Corp., 119 F.3d 1018, 1033 (2d Cir. 1997); Watts v. Kroger, Co., 170 F.3d 505, 509 (5th Cir. 1999); Dole v. Elliot Travel & Tours, Inc., 942 F.2d 962, 968-69 (6th Cir. 1991).

An unverified complaint likewise is deficient unless converted into an affidavit through verification. See Ford v. Wilson, 90 F.3d 245, 247 (7th Cir. 1996) ("By declaring under penalty of perjury that the complaint was true . . . [the plaintiff] converted . . . those factual assertions in that complaint that complied with the requirements for affidavits . . . into an affidavit."); Neal v. Kelly, 963 F.2d 453, 457 (D.C. Cir. 1992) (same). Here, the unverified complaint was not converted into an affidavit and thus does not satisfy the requirements of Rule 56. See Mitnik v. Cannon, 789 F. Supp 175, 176 (E.D. Pa. 1992) (holding that plaintiffs could not rely on unsworn statements and allegations in their complaint); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (holding that an unverified complaint is not competent summary judgment evidence).*fn2

Therefore, this court will not consider the unsworn statements of Twila Evans, Melvin Duley, Angela Lee, Trinea Jacobs Ramsey, or Harold Bailey or the unverified complaint of Sergeant Baranowski for the purpose of deciding the motion for summary judgment.

B. Facts Deemed Admitted under the Local Rules of Court

Defendants also argue that a large number of the facts set forth in their concise statement of facts should be deemed admitted for the purpose of the summary judgment motion because plaintiff failed to comply with the local rules of court and responded to a number of defendants' factual statements with inapplicable, vague, or incorrect references to the record. Defs.' Resp. to Pl.'s Suppl. Br. at 6. Defendants cite to their factual allegations in eighteen paragraphs of the joint concise statement of material facts that they allege have been admitted. Id. at 6. Plaintiff only indirectly responds to this contention by including a section in his supplemental brief setting forth the record evidence, including some materials not previously referenced, that plaintiff believes creates disputes of material fact sufficient to defeat defendants' motion for summary judgment. Pl.'s Suppl. Br. at 8-15.*fn3

Local Rule of Court 56.1.B.1 requires the moving party on a motion for summary judgment to submit with it a concise statement of material facts "setting forth the facts essential for the court to decide the motion for summary judgment, which the moving party contends are undisputed and material . . . ." Local Rule of Court 56.1.B.1 (emphasis in original). The facts are to be listed in separately numbered paragraphs and supported with a specific record reference. Id. Thus, for the facts in each paragraph, "[a] party must cite to a particular pleading, deposition, answer to interrogatory, admission on file or other part of the record supporting the party's statement, acceptance, or denial of the material fact." Id.

Local Rule of Court 56.1.C.1(a) likewise requires the party opposing summary judgment to file a responsive concise statement of material facts that admits or denies whether each statement in the movant's concise statement of material facts is undisputed or not material. The opposing party is also required to set forth the basis for any denial of a fact in the moving party's concise statement with specific reference to the record as described in Rule 56.1.B.1. Local Rule of Court 56.1.C.1(b).*fn4 Local Rule of Court 56.1.E describes the consequence of either party's failure to follow these rules, explaining that facts claimed to be undisputed "will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." Local Rule of Court 56.1.E.

Plaintiff's responses to some of the factual allegations in defendants' concise statement are supported with inaccurate or vague record references or include argument. See, e.g., Joint Concise Statement of Material Facts ("J.S.") ¶ 9 (plaintiff's response).

When viewing the facts set forth in plaintiff's responsive concise statement and supplemental brief in the light most favorable to the plaintiff, see United States v. Diebold, Inc., 369 U.S. 654, 655 (1962), this court will not deem admitted all the allegations in the eighteen paragraphs pointed to by defendants. Defs.' Resp. to Pl.'s Suppl. Br.. at 6. This court will deem admitted for the purposes of deciding summary judgment only those portions of the defendants' factual allegations that plaintiff disputes with materials that were not found to be proper under Rule 56(c) and that are not otherwise contradicted by the record. See, e.g., J.S. ¶ 21.

Defendants have had an opportunity to respond to plaintiff's additional allegations in their response to plaintiff's supplemental brief where they argued that their summary judgment motion should be successful even if plaintiff's supplementary materials are considered. Defs.' Resp. to Pl.'s Suppl. Br. at 3. It is also within the court's discretion to direct different procedures as the circumstances require. See Local Rule of Court 56.1.A ("The procedures that follow shall govern all motions for summary judgment . . . unless the court, on its own motion, directs otherwise, based on the particular facts and circumstances of the individual action.").*fn5 This approach permits the court to take stock of the "entire setting" of the case when ruling on summary judgment. See 10A CHARLES A. WRIGHT & ARTHURR. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2721, at 366 (1998) ("The parties need not formally offer their outside matter as evidence or have it marked as an exhibit at the hearing on the motion. Given this process, the court is obliged to take account of the entire setting of the case on a Rule 56 motion.").

C. Admissibility of Late-Filed Duley Deposition and Baranowski Affidavit

The most heavily contested procedural aspect here relates to plaintiff's attempts to submit additional materials for the court's consideration in ruling on the motion for summary judgment. Along with his supplemental brief, plaintiff submitted two additional materials for this court's review: the deposition of witness Duley, labeled Exhibit A,*fn6 and an affidavit of James E. Baranowski, labeled Exhibit B.

Plaintiff argues that this court should consider these two documents under its authority to extend discovery under Federal Rule of Civil Procedure 56(f) and to allow documents to be supplemented under Rule 56(e). Pl.'s Suppl. Br. at 5-6. He argues that these provisions provide this court with broad authority to extend discovery and argues that the "overall goal is to reach a just decision." Id. at 6. He asserts that it "would be a miscarriage of justice" to ignore these two important pieces of evidence for purposes of deciding the motion for summary judgment. Id. at 7.

Defendants, on the other hand, suggest that it would be a miscarriage of justice to consider the materials. They argue that plaintiff should not be allowed to ignore this court's deadlines after the long discovery period here without providing any legitimate reason. Defs.' Resp. to Pl.'s Suppl. Br. at 10-11. Further, they argue that plaintiff has not satisfied the requirements of Rule 56(f) by reason of plaintiff's failure to file a Rule 56(f) affidavit and failure to explain why he has not previously obtained the material. Id. at 12. Finally, defendants argue that plaintiff's failure to introduce the Duley deposition was the result of an intentional strategic choice because portions of the deposition may contradict plaintiff's theory of the case. Id. at 10, 14-17. Defendants argue that plaintiff should be bound by his strategic decision. Id. at 17. This court will not consider the plaintiff's late submitted affidavit, but will exercise its discretion to consider the deposition of Melvin Duley.

It is firmly established that a court "is obliged to give a party opposing summary judgment an adequate opportunity to obtain discovery." Dowling v. City of Philadelphia, 855 F.2d 136, 139 (3d Cir. 1988). If a party opposing summary judgment believes that additional discovery is necessary, the proper procedure is to file a motion pursuant to Rule 56(f) for additional time for discovery.*fn7 Id. "District courts usually grant properly filed Rule 56(f) motions as a matter of course."*fn8 St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309, 1314 (3d Cir. 1994).

In filing a motion, Rule 56(f) "specifies the procedure to be followed, and explicitly provides that the party must file an affidavit setting forth why the time is needed." Pastore v. Bell Telephone Co., 24 F.3d 508, 510-11 (3d Cir. 1994). The United States Court of Appeals for the Third Circuit has emphasized that the filing of a proper affidavit is a requirement and has held that the failure to do so is normally fatal to the motion. See id. at 511; Lunderstadt v. Colafella, 885 F.2d 66, 70-71 (3d Cir. 1989); Dowling, 855 F.2d at 139-40. Failure to meet this technical requirement of the rule is not automatically fatal to the Rule 56(f) motion. St. Surin, 21 F.3d at 1314. The court, however, employs a strong presumption against findings of constructive compliance with Rule 56(f). Bradley v. United States, 299 F.3d 197, 207 (3d Cir. 2002). Thus, "in all but the most exceptional cases" an affidavit is required. Id. (citing Pastore, 24 F.3d at 11).

Constructive compliance with the affidavit requirement will not be found unless the movant satisfies Rule 56(f)'s basic requirements that he "specify 'what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.'" Pastore, 24 F.3d at 11 (quoting Dowling, 855 F.2d at 140). In explaining why the information has not been previously obtained, the moving party must show good cause for not having discovered the information sooner. See Lunderstadt, 885 F.2d at 71-72. If the party's need is the result of his own lack of diligence, he will normally not receive relief under Rule 56(f). See id.; see also Strag v. Bd. of Trs., 55 F.3d 943, 954 (4th Cir. 1995); Resolution Trust Corp. v. North Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994) ("Rule 56(f) is designed to minister to the vigilant, not to those who slumber upon perceptible rights.").

To receive relief under Rule 56(f), an opposing party is also required to make his motion within a reasonable time after receiving the motion for summary judgment. Massachusetts School of Law at Andover, Inc., v. American Bar Ass'n, 142 F.3d 26, 44 (1st Cir. 1998). A reasonable time "means that a Rule 56(f) motion normally should precede or accompany the response to the summary judgment motion or follow as soon as practicable thereafter." Id.; Ashton-Tate Corp. v. Ross, 916 F.2d 516, 520 (9th Cir. 1990) ("implication and logic require that a Rule 56(f) motion be made prior to the summary judgment hearing.").

Plaintiff's invocation of Rule 56(f) is problematic here. Plaintiff has not filed the required Rule 56(f) affidavit, but only argued in his supplemental brief that Rule 56(f) applies here.*fn9 Pl.'s Suppl. Br. at 5-7. Plaintiff has also not shown the existence of exceptional circumstances which would implicate the applicability of an exception from the technical requirements of the rule and permit the court to construe his supplemental brief as a Rule 56(f) affidavit. Plaintiff has not offered a strong explanation with respect to why he could not have obtained the additional materials sooner. He fails in his supplemental brief to provide any reason for his failure to submit the Baranowski affidavit prior to the submission of his supplemental brief.*fn10

Plaintiff argues that the late filing of the Duley deposition was a result of inadvertence. He asserts that, although "counsel believes he ordered a copy of the transcript," "counsel did not realize that it was never sent" "until Plaintiff's response was being filed . . . ."*fn11 Pl.'s Suppl. Br. at 3 n.1. Plaintiff's counsel, however, fails to explain why he did not bring the Duley deposition to the attention of this court prior to the summary judgment hearing when he had it in his possession three days before the hearing. See Defs.' Resp. to Pl.'s Suppl. Br., Ex. A at 7 (summary judgment hearing transcript).

In light of plaintiff's failure to comply with the requirements of Rule 56(f), it is within this court's discretion to deny his Rule 56(f) motion and refuse to consider plaintiff's supplementary materials. The inquiry does not end with that matter. Plaintiff argues that the provisions of Rule 56(f) and Rule 56(e) when taken together indicate that "the overall goal is to reach a just decision considering all the facts of the case with the Court being given the power to enter any order to allow for additional discovery and evidence which is to be considered before a case is dismissed." Pl.'s Suppl. Br.. at 6. Although plaintiff understates the importance of complying with the rules, district courts do have significant discretion under the rules when determining whether to accept late materials.

Rule 56(c) limits an adverse party to serving opposing affidavits only until "prior to the day of the hearing . . . ." FED. R. CIV. P. 56(c). This court has broad discretion to determine what materials to consider on summary judgment under its case management powers. See FED. R. CIV. P. 16.*fn12 Rule 56(e) also grants the court the ability to "permit affidavits to be supplemented or opposed by depositions . . . or further affidavits." FED. R. CIV. P. 56(e); see Chaudoin v. Atkinson, 406 F. Supp. 32, 35 (D. Del. 1975) (noting that, where Supreme Court precedent altered the applicable legal standard, plaintiff seeking key deposition is in "the type of situation in which . . . [Rule 56(e)] contemplates that a party . . . will be given an opportunity to further develop the record.").

Most importantly, Rule 56(c) is qualified by Rule 6(d) and (b). First, Rule 56(c) should be read in conjunction with Rule 6(d) which authorizes the court to permit opposing affidavits "to be served at some other time."*fn13 See L.D. Woods v. Allied Concord Financial Corp. (Del.), 373 F.2d 733, 734 (5th Cir. 1967); see also Beaufort Concrete Co. v. Atlantic States Constr. Co., 352 F.2d 460, 462 (5th Cir. 1965) (arguing that the Rule56(c) time limit "permits no exception . . . . does not comport with the liberal tenor of the Federal Rules, and is not justified by any singularity of the motion for summary judgment."). Second, Rule 6(b) grants the court broad discretion to enlarge the time for an act required under the rules. L. D. Woods, 373 F.2d at 734; Beaufort Concrete Co. 352 F.2d at 462.

Based upon these rules, it is "solely within the court's discretion" to accept a late filed opposing affidavit, Nestle Co., Inc., v. Chesters Market, Inc., 571 F. Supp. 763, 772 (D.Conn. 1983), such as one filed on the day of the summary judgment hearing. L.D. Woods v. Allied Concord Corp., 373 F.2d 733, 734 (5th Cir. 1967); Blackburn v. Prudential Lines, Inc., 454 F. Supp. 1302, 1306 (E.D. Pa. 1978).

This discretion, however, is not without limit. Courts will usually reject late filed materials where the party seeking further time has not "offered any explanation or justification . . . for his failure to comply with the time requirement of Rule 56(c)." Blackburn, 454 F. Supp. at 1306; see Nestle Co., Inc., 571 F. Supp. at 772-73; Beaufort Concrete Co., 352 F.2d at 463. Courts have also shown an unwillingness to accept late filed materials where they prejudiced the opposing party because he had no knowledge of their existence. Blackburn, 454 F. Supp. at 1306 ("Using Rule 6(d) to permit the affidavit to be used in opposition to defendant's motion . . . would be unfair to defendant, which filed the motion, replied to plaintiff's opposition to the motion and argued the motion without knowledge of the existence of the affidavit."). Moreover, courts have noted that "Rule 56(c) and 6(d) should be read in conjunction with Rule 6(b) . . . ." Schafer Bakeries, Inc. v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen, & Helpers of Am., Gen. Drivers Union, Local 332, 650 F. Supp. 753, 756 (E.D. Mich 1986). Rule 6(b) "sets out the proper approach" for late filings, and only allows for an extension of time for materials filed after a deadline where excusable neglect is shown.*fn14 Lujan v. National Wildlife Fed'n, 497 U.S. 871, 896-97 (1990).

"Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute 'excusable' neglect, it is clear that 'excusable neglect' under Rule 6(b) is a somewhat 'elastic concept' and is not limited strictly to omissions caused by circumstances beyond the control of the movant." In re Orthopedic Bone Screw Prods. Liab. Litig., 246 F.3d 315, 322 (3d Cir. 2001) (quoting Pioneer Inv. Servs. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 391 (1993)). The determination as to what constitutes excusable neglect is an "equitable one, taking account of all relevant circumstances surrounding the party's omission. . . ." Pioneer Inv. Servs., 507 U.S. at 395. The following relevant factors are considered: "I) the danger of prejudice to the nonmovant; ii) the length of the delay and its potential effect on judicial proceedings; iii) the reason for the delay; and iv) whether the movant acted in good faith." DaSilva v. Esmor Correctional Servs. Inc., 215 F.R.D. 477, 483 (D. N.J. 2003) (citing Pioneer Inv. Servs., 507 U.S. at 392).

After considering the relevant circumstances in this case this court concludes for several reasons that it should not exercise its discretion to consider the Baranowski affidavit in deciding the motion for summary judgment. First, admitting the affidavit would prejudice the defendants who had no knowledge of the affidavit prior to its late admission. The unverified complaint included in plaintiff's original response to defendants' motion for summary judgment did not put defendants on notice with respect to the material in the affidavit because the matters set forth in the complaint were substantially different from the matters referred to in the affidavit. Second, plaintiff's first attempt to submit the affidavit occurred when plaintiff attached it the supplemental brief that he filed on November 2, 2006, two weeks after the October 19, 2006 summary judgment hearing.*fn15 See. Pl.'s Suppl. Br., Ex. B. Courts have been ill disposed to admit affidavits that were submitted after the summary judgment hearing, especially without a good reason to do so. See, Nestle Co., Inc., 571 F. Supp. at 763 (court refused to consider a motion filed a month after oral argument where party failed to offer any explanation for its late filing).

Finally, as noted above, plaintiff has not provided an adequate reason to explain the failure to submit the affidavit on time.*fn16 By reason of the affidavit including new material submitted after the summary judgment hearing without sufficient explanation for its lateness, this court cannot find the circumstances here provide an adequate reason to consider the Baranowski affidavit for the purpose of deciding the motion for summary judgment.

The Duley deposition, however, presents a different scenario. Plaintiff is not asking this court for permission under Rule 56(f) for time for "depositions to be taken," FED. R. CIV. P. 56(f), but is only asking for permission to submit a deposition that had been previously taken and was in possession of defendants. The Duley deposition also presents a closer case because its admission presents little danger of prejudice to the defendants. Unlike the majority of the situations where the district court denied late filed materials, the deposition here involves material that is not a surprise to defendants. The defendants' counsel were aware of the substance of the deposition since they took the deposition on March 21, 2005, one and one-half years before the October 19, 2006 summary judgment hearing.

Plaintiff's intention to rely on Duley in some fashion at the summary judgment stage was also apparent from plaintiff's insertion of the unsworn statement in his initial Response, although this court rejected that statement as inadmissible for deciding the motion for summary judgment. Pl.'s Resp. to Defs.' Concise Statement of Facts, Ex. I. Unlike the situation with the Baranowski affidavit, plaintiff's counsel attempted to submit the deposition during the summary judgment hearing. See L.D. Woods, 373 F.2d at 734. This court granted defendants an opportunity to respond to the submission of the Duley deposition in their response to plaintiff's supplemental brief. Finally, the Duley deposition also presents evidence that is clearly material to this court's proper disposition of this case. This court will exercise its discretion to consider the Duley deposition for the purpose of deciding the motion for summary judgment. The parties should not view this exercise of discretion as permission to disregard the deadlines ordered by this court. A party who needs an extension of time to comply with a deadline ordered by this court must seek an extension; otherwise, that party risks adverse consequences.

II. FACTUAL BACKGROUND

A. Defendants' Backgrounds

At the time of the shooting defendant Samuel J. Nassan, III was twenty-nine years*fn17 old. Defs. App., Ex. 1 (Samuel J. Nassan III Nassan Deposition ("Nassan Dep.")) at 7 (Mar. 2, 2005). He had been a trooper with the Pennsylvania State Police at the Uniontown station for approximately six months. Id. at 56. He began his service there in July 2002 after attending the State Police Academy. Id. Prior to joining the state police he had a long history of military service, serving a little over eight years in active service and two years of inactive service in the Marines. Id. at 46. He initially joined the Marines in 1992, two years after graduating from high school. Id. at 29-30. After bootcamp, he became a member of the military police, id. at 38-39, and served as an active military patrolman for about three years, although he retained the title throughout his time of service. Id. at 53. He moved up in rank until he was promoted to the rank of staff sergeant, E-6, a promotion he did not accept because he resigned from active service as of November 10, 2000, to seek a position with the state police. Id. at 45-46, 51-52.

Defendant Nassan has long been familiar with firearms. Id. at 40. He has been hunting since the age of nine, id. at 40, continues to hunt year round in Pennsylvania, id. at 41, and owns over twenty guns. Id. at 41-42. While in the Marines, he distinguished himself as an expert marksman, serving as a sniper and sniper instructor and competing on behalf of the Marine Corps in pistol and rifle matches. Id. at 42-43. He also received urban sniper training and training in urban close quarter combat, id. at 44, and became an instructor in those areas. Id. at 45. As an instructor, he "traveled around training local, state and federal law enforcement agencies" on the "use of force, SWAT training and sniper training" and "wrote an eight-hour block of instruction on . . . [the] use of force and less lethal force for the military who is still currently using it." Id. at 62-63. He testified that, despite this expertise, prior to the incident in question, he never was required to discharge his weapon in anything other than a firing range situation. Id. at 52. He testified, however, that he had been required to draw his weapon while on duty as a military police officer and in his regular police duties. Id. at 52-53.

Defendant Nassan weighed 260 pounds at the time of the shooting. Id. at 158. He has lifted weights and agreed that he is a gym rat. Id. at 33. While in the Marines he entered "minor" weightlifting competitions and proudly asserted that he was able to power lift 500 pounds. Id. at 103. At the time of the shooting he was not competing, but continued to lift weights at a local gym. Id. at 104. Defendant Nassan testified that he also took several different types of protein supplements and had been doing so for eight to nine years. Id. at 37-38, 101-02. Defendant Nassan also testified that while in the Marines, when he weighed only 245 pounds, he was able to run three miles in approximately twenty or twenty-one minutes. Id. at 36.

Unlike defendant Nassan, defendant Curry does not have any certifications in special weapons areas. See Defs.' App., Ex. 2 (Deposition of Juan Curry ("Curry Dep")) (March 3, 2005) at 42-44. At the time of his deposition, over two years after the shooting, defendant Curry was stationed at the Uniontown station of the Pennsylvania State Police. Id. at 12. As of the same time, he testified that he had worked at that station for seven to eight years and had been a trooper for ten years. Id. Defendant Curry was thirty-two years old at the time of the shooting. See Id. at 14. Born and raised in Uniontown, he attended the United States Navel Academy for less than a year before transferring to Penn State University, which he left in his junior year in 1991 for personal reasons. Id. at 14-19. At Penn State University he played football for one season as a strong safety, but did not start. Id. at 17. After working for two or three years unloading trucks for UPS, he was hired as a state trooper on July 24, 1994. Id. at 21-24. While serving as a trooper, he received training in accident reconstruction and worked as an accident reconstructionist. Id. at 25-27. Prior to the incident here, defendant Curry had never attempted to shot anyone nor had he been shot. Id. at 24-25.

Prior to the incident here, defendants Nassan and Curry were not well acquainted. Nassan Dep. at 67-68, 117; Curry Dep. at 41-42. They had not worked regularly with each other and, as far as defendant Nassan could recall, had never previously responded to a scene together. Nassan Dep. at 67-68, 117; Curry Dep. at 41. Defendant Nassan said "I mean I didn't even know the guy that well" and "I just knew him from seeing him around the barracks." Nassan Dep. at 110. Defendant Curry did note, however, that he thought they may have encountered each other in some capacity when working on the same accident the day before the incident in question. Curry Dep. at 41-42.

B. The Initial Chase

On December 24, 2002, defendants Nassan and Curry were at the Uniontown station working the day shift, which ended at 3:00 p.m. Nassan Dep. at 90-91; Curry Dep. at 51-52. They were both doing paperwork when a call came in that there was a fight at the Uniontown Mall. Nassan Dep. at 91-92, 100; Curry Dep. at 51-52. Defendant Nassan testified that he did not want to take his own car to the scene because it was unmarked and difficult to recognize, so he got into defendant Curry's car since it was the first car that came by as he was leaving the station. Nassan Dep. at 92-93, 109-10; Curry Dep. at 53. When defendants reached the mall the situation had cleared up and they did not enter the mall. Nassan Dep. at 93.

At approximately 2:14 p.m. while defendants were still in the mall parking lot, they received a call that a stolen vehicle described as an older brown Ford Bronco had been seen in the City of Uniontown. J.S. ¶ 1; Nassan Dep. at 117, 119; Curry Dep. at 54-55. Defendants Nassan and Curry decided that the stolen vehicle would most likely be found in the Lemonwood or Lemonwood Acres area because stolen cars seen in the city are often recovered in that area. Nassan Dep. at 118-19; Curry Dep. at 57-58, 60. They immediately headed towards that area, and began traveling north on Cleveland Avenue. Nassan Dep. at 120; Curry Dep. at 60. When they had driven less than ten blocks on Cleveland Avenue, they encountered a brown Ford Bronco (the "Bronco") matching the description of the stolen vehicle emerging from a side alley and appearing to attempt to turn onto Cleveland Avenue. Nassan Dep. at 121-22; Curry Dep. at 61. Both defendants testified that the driver of the vehicle appeared to be attempting to turn left onto southbound Cleveland Avenue in front of the defendants' northward bound police car.

Nassan Dep. at 121-22, 124; Curry Dep. at 61. Defendant Nassan testified that he reached this conclusion because the wheels on the Bronco were turned to the left. Nassan Dep. at 124-25.

Both vehicles stopped close to each other. The defendants' marked car was perpendicular to the Bronco and the right fender of defendants' vehicle made a right angle with the Bronco's left fender. J.S. ¶ 3. Both defendants observed a black male driving the car, but were not able to determine whether anyone else was in the vehicle. Nassan Dep. at 124; Curry Dep. at 61-62. Defendant Curry testified that he thought he saw a black male driving the car who "looked to be a teenager," i.e., "fifteen through nineteen," but was unable to tell anything else about the driver's appearance from defendant Curry's vantage point. Curry Dep. at 61-62. Defendant Nassan testified that he could see a black male from the shoulders up from his vantage point looking slightly up at an angle at the driver. Nassan Dep. at 122-23. He stated that the driver was sitting up, but he could not tell how tall he was. Id. at 122.

Defendant Nassan got out of the police car, drew his weapon, and approached the driver's side of the Bronco with his weapon pointed at the driver. J.S. ¶ 6; Nassan Dep. at 131. As he exited the police cruiser, defendant Nassan made loud verbal commands to the driver such as "Let me see your hands, stop, let me see your hands, State Police, let me see your hands." J.S. ¶ 7; Nassan Dep. at 140. Defendant Nassan approached within ten feet of the car and testified that he observed the driver looking at him with a blank expression. Nassan Dep. at 132-33. As defendant Nassan approached, both defendants observed the driver moving the gearshift in an apparent attempt to shift gears. Nassan Dep. at 130, 133; Curry Dep. at 64. The driver accelerated the Bronco in reverse down the alley behind him. J.S. ¶ 8; Curry Dep. at 64. As the driver backed down the alley, he hit the side of a house multiple times, scraping it as he drove, drove through a yard, hit a tree, and ran over a 'WATCH CHILDREN' sign. J.S. ¶ 10; Curry Dep. at. 65. After driving approximately 100 yards, the driver ran over a chain link fence and the Bronco came to a stop with its back end resting on the fence. Nassan Dep. at 145; Duley Dep. at 31. Defendant Nassan testified that, after the Bronco had begun to move, he got back into the police cruiser, holstering his gun as he did so. Nassan Dep. at 144; J.S. ¶ 9. Defendant Curry confirmed that defendant Nassan got back into the police cruiser at some point and the defendants, while in the police cruiser, followed the Bronco as it reversed down the alley. Curry Dep. at 64. Defendants came to a stop almost bumper to bumper with the Bronco. J.S. ¶ 11; Curry Dep. at 65-66.

The defendants' testimony of what happened at this point differs from that of Duley. The defendants assert, after both cars came to a stop, and while defendant Curry was attempting to call the police station, defendant Nassan opened his door, drew his weapon, began moving toward the Bronco to execute an arrest, and yelled verbal comments such as "State police, let me see your hands, state police, don't move, let me see your hands." Nassan Dep. at 146; Curry Dep. at 66--68; J.S. ¶ 12.*fn18 Defendant Nassan testified that, while still shouting verbal orders, he observed a suspect in the driver's seat of the Bronco looking at him with a blank expression on his face. Nassan Dep. at 148; J.S. ¶ 14. Defendant Nassan stated that the suspect looked "indifferent" during the chase and "had no fear in his face." Nassan Dep. at 193. Defendants allege that the suspect exited the driver's side door of the Bronco and immediately began to run. J.S. ¶ 15. The suspect ran toward Edgemont Drive down another alley called Prospect Street which ran perpendicular and to the right of the alley that the stolen Bronco had just driven down. Id. The suspect who exited the car was later identified as Michael Ellerbe ("Ellerbe").*fn19 Id. Ellerbe was 5'2" and weighed 100 pounds. Pl.'s App., Ex. B. at 2. At the time, he was twelve years old. See Defs.' Br. in Support of Motion to Dismiss (Doc. No. 7) at 1.

When Ellerbe began to run, defendant Nassan testified that he was within fifteen feet of him or a little closer and did not see a weapon at that time. Nassan Dep. at 150-51, 155. Defendant Nassan initially testified that, although "I probably could have took [sic] a couple steps and grabbed him -- " he did not do so because "I think I was more shocked that he got out and ran than anything." Id. at 157. Defendant Nassan explained, "If I draw -- and generally when I draw my gun on somebody, I'm 260 pounds, people either stop -- if they're going to make a move, they're making a move because something bad's going on, they might have a weapon." Id. at 158. Defendant Nassan, however, later testified that he did not grab Ellerbe because "[h]e might have had a weapon, and he was too fast." Id. at 178. Defendant Nassan testified that he did not grab him when he was within two steps of him "[b]ecause I thought he was armed." Id. This somewhat corresponded to his prior testimony at the inquest that, as Ellerbe was exiting the car, "I was close enough that if I would have taken approximately two steps, I could have probably grabbed him. If I could have seen his hands . . . . I would have taken those two steps and grabbed him right out of that vehicle." Defs.' App., Ex. 4 (Coroner's Inquest, Afternoon Session ("Inquest") at 211.

Duley testified in his deposition that the chronology of events was different from that recounted by the officers. He stated that Ellerbe "wrecked the car into the fence and got out of the car." Duley Dep. at 32. He agreed that as Ellerbe "was outside the car looking up the street," the police car then approached. Id. Two policemen got out of the car and began to chase Ellerbe down the alley. Id. According to Duley's testimony, defendant Nassan's short standoff with Ellerbe did not occur.

Once the foot chase began, defendant Nassan testified that Ellerbe "pulled away initially" before Nassan determined how to respond to his actions. Nassan Dep. at 167-68. But, a few short moments later, once Ellerbe was about thirty or forty feet in front of him, defendant Nassan gave chase. Id. at 167-68, 182-84. Defendant Curry testified that he got out of the police car and began to chase Ellerbe at about the same time that Nassan began chasing Ellerbe, although "they both have the jump on me." Curry Dep. at 73. Ellerbe ran down Prospect Street followed by defendant Nassan, with defendant Curry slightly behind and all of them reached a full out sprint. Curry Dep. at 74; Nassan Dep. at 166, 194; J.S. ¶¶ 19-20.

Ellerbe turned right onto Edgemont Drive and began running west towards Cleveland Avenue. J.S. ¶ 22. Nassan slowed, hoping to cut a corner when he encountered an indentation in a fence and, as he did so, Curry passed him. J.S. ¶¶ 21, 23; Curry Dep. at 74. Defendant Nassan testified that he stopped at the indentation because he hoped to be able to cut the corner and intercept Ellerbe as he turned right onto Edgemont Drive, but a privacy fence prevented him from doing so. J.S. ¶ 21. Defendant Nassan further testified that he was worried that taking the corner blindly would be dangerous because of the tactical advantage it would give to Ellerbe if he had a weapon and that he yelled at defendant Curry to take the corner wide for the same reason. Nassan Dep. at 197-98. Defendant Curry took the corner wide onto Edgemont Drive. Id at 201-02. With defendant Nassan slightly behind defendant Curry, defendants chased Ellerbe up Edgemont Drive towards Cleveland Avenue, closing the distance with Ellerbe as he approached Cleveland Avenue. Nassan Dep. at 195; Duley Dep. at 52. Ellerbe ran across Cleveland Avenue, across a yard, and onto a driveway, with defendant Curry about twenty feet behind Ellerbe and defendant Nassan behind defendant Curry. Nassan Dep. at 209, 217; Duley Dep. at 43-44. Ellerbe ran down a driveway, which was at 61 Cleveland Avenue, and into the property's backyard. J.S. ¶ 33. He vaulted the four-foot-high fence at the rear of the yard, landing in the backyard of 68 Murray Avenue. J.S. ¶ 34. Defendant Nassan agreed that it was possible that this entire chase covered approximately 110 yards and only lasted longer than half a minute. Nassan Dep. at 191-92.

C. The Parties' Actions During the Foot Chase

The parties dispute Ellerbe's actions as he ran, as well as the officer's responses and the impression they received from Ellerbe's actions. The parties primarily dispute whether Ellerbe put his right hand into his pocket during the pursuit and ran with a blading motion looking back over his right shoulder or whether he ran like a sprinter with his arms pumping throughout the entire chase.

Defendant Nassan testified that Ellerbe's hands were going "in and out" of his pocket "a few times" "[t]hroughout the course of the chase." Nassan Dep. at 164, 203. He asserted that, as a result, "I thought he had something in his pocket, and he was holding onto something." Id. at 163. Defendant Nassan initially testified in his deposition that when Ellerbe exited the car he could only see his right hand, which was moving "like as in running." Id. at 161- 62, 165. When asked which hand Ellerbe had in his pocket, he testified, "I believe it started with the left hand the whole time. I know the right hand went into his pocket or it left my view at least once during the pursuit, but his left hand was definitely in his pocket." Id. at 162. He explained that he noticed for the first time that Ellerbe was running with his left hand in his pocket when he initially was directly behind Ellerbe who was at a distance of about thirty or forty feet. Id. at 165.

During Nassan's deposition, plaintiff's counsel referred him to his testimony at the Inquest after the shooting. Id. at 169. At the Inquest, defendant Nassan had testified: "Upon exiting the vehicle, though, he landed, kind of landed on the fence. I remember seeing him stumbling. The ironic thing was he had his hand in his pocket, in his right pocket, the whole time. He come [sic] out of the vehicle with his hand in his pocket." Defs. App., Ex. 4 at 210 (Inquest). After plaintiff's counsel referred defendant Nassan to his Inquest testimony, Nassan changed his testimony to agree with his statements at the Inquest. He stated that Ellerbe had his right hand in his pocket, and defendant Nassan testified that it was the left hand that he could not see, from the moment he exited the Bronco. Nassan Dep. at 169-71. At his deposition, upon being confronted about the confusion about which hand he could see and which hand was in Ellerbe's pocket, defendant Nassan testified "I can't recall. I can't recall accurately. It was two years ago." Id. at 188. He also stated that he could not accurately recall if Ellerbe's left hand was in his pocket at any point during the chase. Id. at 188-89. Defendant Nassan testified that as he chased the suspect down the alley he continued to scream things such as "[l]et me see your hands" and "[g]et your hand out of your pocket." Defs.' App., Ex. 4 at 212-13 (Inquest).

Defendant Curry testified that Ellerbe put his hand in his pocket two or three times during the chase. Curry Dep. at 78. He testified that each time Ellerbe did so he put it in for "a couple of seconds" and then took it out. Id. at 87. Defendant Curry agreed with defendant Nassan's later testimony that Ellerbe put only his right hand in his pocket, noting that it was "always the right hand." Id. at 142-43. At the beginning of defendant Curry's deposition, he disclosed that he had discussed the issue of which hand Ellerbe had in his pocket with defendant Nassan after defendant Nassan's deposition the day before. Id. at 10-11. He explained, "I just remember one thing he had mentioned about he made a statement about -- asked about hands or something like that, that he had inadvertently said the wrong hand. He said he was just caught up in the movement, the first thing that came to his mind that he said left when he meant to say right." Id. at 11.

Defendant Nassan testified that when Ellerbe began running he was "blading," which meant that he was turning his body at an angle. Nassan Dep. at 164. He explained that Ellerbe began running with his body turned sideways so that his right shoulder was back and, as Ellerbe did so, he kept looking back at defendant Nassan. Id. at 166. Defendant Nassan testified that he considered Ellerbe's actions threatening behavior, and considered blading "a defensive position." Id. at 187-88, 191. He explained that "[w]hen you blade your body shows me that there's a possibility that you can reach around and throw something, shoot, anything you need to do at that point." Id. at 187-88. He stated that, although Ellerbe did not run the entire 110 yards of the chase blading, he did blade "continuously" during the chase. Id. at 207. He explained, "[Ellerbe] blades and then runs straight and then blades. He continued to blade." Id. at 207. Defendant Nassan stated that despite Ellerbe looking back over his shoulder and having his hand in his pocket, Ellerbe was "running fast." Id. at 166-67. Finally, when asked about Duley's description of Ellerbe as "pumping his hands to run," defendant Nassan sharply disagreed. Id. at 203. He testified that he could not recall if Ellerbe's hands were pumping when they were out of his pocket and stated his disagreement with Duley's testimony that Ellerbe was pumping his hands to run, stating: "I witnessed it, his hands were not pumping." Id. at 203-04 Defendant Curry, however, contradicted defendant Nassan's statements with respect to the running motions of Ellerbe. He testified that Ellerbe was pumping his arms at some points during the chase. Curry Dep. at 77, 86. He stated that Ellerbe ran with his arms pumping whenever he did not have his hand in his pocket. Id. at 87. Defendant Curry testified that he was "pretty much" looking "squarely" at Ellerbe's back for most of the chase, except when Ellerbe was veering or making a turn. Id. at 87. Defendant Curry was also asked, "did [Ellerbe] turn and look over his shoulder at any time that you recall?" Id. at 164. He replied, "That I can recall today, I don't remember him looking back over his shoulder, I can't recall that today." Id. Duley testified that he saw Ellerbe look over his shoulder as Ellerbe approached Cleveland Avenue. Duley Dep. at 41. Duley, however, contradicted defendant Nassan by testifying that Ellerbe ran with his arms moving up and down in a pumping motion. Duley Dep. at 35.

There is a factual dispute regarding when defendants drew their service revolvers. Defendant Nassan testified that he drew his weapon before the chase began when he got out of the police car to attempt to execute a felony arrest. Nassan Dep. at 131; J.S. ¶ 12. He further testified that he thought he holstered the gun during the chase once defendant Curry passed him because he was concerned about a "cross-fire situation." Nassan Dep. at 211-12. Although he was not sure, he also thought that he again unholstered his weapon after crossing Cleveland Avenue: "I want to say it was in the yard when we appeared to be gaining control of the chase." Nassan Dep. at 213. He was sure, however, that when defendant Curry was trying to take the fence his own gun was either already out or he was in the process of drawing it. Id. at 241. Defendant Curry agreed that defendant Nassan exited the vehicle when they first encountered Ellerbe in the alley, but could not recall if defendant Nassan pulled his gun at that point, Curry Dep. at 67-68, and could not describe when Nassan holstered and unholstered his gun during the chase because he testified that he lost sight of defendant Nassan after passing him early in the chase. Id. at 91.

Defendant Curry testified that he took out his own service revolver as they were running when he first saw Ellerbe "with his hands in his pocket" and heard defendant Nassan tell him to get his hands out of his pants. Id. at 84-85. He thought he did so while running down the first alley towards Edgemont Drive. Id. at 84-85. Defendant Nassan, however, was unable to recall whether or not defendant Curry's weapon was out at any time during the chase, including the part of the chase when defendant Curry was in front of him. Nassan Dep. at 212. Defendant Nassan testified that he was not aware that defendant Curry's weapon had been out until "after the whole incident." Id. at 212.

Duley's testimony sharply contradicted both defendants' statements. He testified that he observed the defendants as they were running down the initial alley and turned onto Edgemont Drive and stated, at that point, they did not have anything in their hands. Duley Dep. at 34.*fn20 He further testified that both defendants did not have their guns out when he saw them toward the end of Edgemont Drive and that neither defendant had his gun drawn prior to jumping the fence at the end of the chase. Id. at 48-49. Duley stated that defendant Curry drew his gun after jumping the fence, but was unable to see if defendant Nassan drew his gun. Id. The parties dispute whether either defendant in fact believed Ellerbe had a weapon on the basis of the facts described above as well as the statements of defendants. Nassan testified that he feared that Ellerbe might have a weapon "the whole time." Nassan Dep. at 174. He testified that from what he saw "I thought that he had something in his pocket, and he was holding onto something." Id. at 163. Yet, defendant Nassan also agreed that he never saw anything that looked like a weapon at any time during the chase. Id. at 156. He also testified that when Ellerbe was "blading" he did not make any "threatening gestures" or draw any weapon. Id. at 207. Defendant Curry likewise testified that he was concerned that Ellerbe had a weapon because he put his hand in his pocket while he was running, Curry Dep. at 77-78, and that he drew his weapon because he saw Ellerbe with his hands in his pocket, heard defendant Nassan yell "get your hands out of your pants" and was concerned that Ellerbe had a weapon. Id. at 84-85. He also agreed, however, that he did not see anything that looked like a weapon during the chase. Id. at 89.

Defendant Nassan testified that, although he was worried that it was a busy neighborhood, Nassan Dep. at 217, he did not see any vehicles moving during the chase, nor did he observe any pedestrians or anyone else in the area. Id. at 216-17. Duley similarly testified that he did not observe anyone else in the area during the chase until after the shooting. Duley Dep. at ...


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