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Pelzer v. City of Philadelphia

August 31, 2009

RAYMOND PELZER, PLAINTIFF
v.
CITY OF PHILADELPHIA, ET AL., DEFENDANTS



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

Raymond Pelzer was shot and killed by Officer Burton on April 27, 2006, after running from police officers who had stopped him for non-violent illegal activity. Pursuant to 42 U.S.C. § 1983 and state law, Leslie Pelzer, individually and in her role as administratrix of the estate of her son, Raymond Pelzer, initiated this action against Philadelphia Police Officer Marvin Burton, Police Commissioner Sylvester Johnson, and the City of Philadelphia (City).

Ms. Pelzer's complaint consists of seven counts: (I) Fourth Amendment excessive force claim against Burton; (II) Civil battery against Burton; (III) Civil assault against Burton; (IV) Failure to train against the City and Commissioner Johnson; (V) Monell claim against the City and Commissioner Johnson; (VI) Wrongful death; and (VII) Survival. (See Compl.¶¶ 35--60 (Document #1).) The defendants have moved for summary judgment on all counts. After careful consideration of the parties' memoranda and the record, I will grant the motion in part and deny it in part.

I. Background

A. Officer Burton's Training

Officer Marvin Burton entered the Philadelphia Police Academy in April of 2003 and graduated in November that same year. (Defs.' and Pl.'s Statement of Facts ¶ 1 [hereinafter SOF]; Philadelphia Police Officer Marvin Burton Dep. 10:4--14, Mar. 13, 2008.) As of April 2006, he had been serving for approximately two and one-half years as an officer. The Pelzer shooting was Officer Burton's first firearm discharge incident.*fn1

(Burton Dep. 41:18--21.)

The Academy training curriculum is composed of courses mandated by either the Philadelphia Police Department (Department) or the Municipal Police Officers' Education & Training Commission (MPOETC). (SOF ¶ 2.) Two of the areas covered during training are the use of force and police patrol procedures. (Id. ¶¶ 2, 6.)

i. Use of Force Training

Officer Burton was trained to use force in accordance with Department Directives 10 and 22. (Id. ¶ 2; Burton Dep. 11:16--12:9.) Department Directive 10 covers the use of deadly force. The officer's primary duty is "to preserve human life." (Defs.' Mem. for Summ. J. Ex. F (Philadelphia Police Department Directive 10) at 1.) To that end, deadly force is only to be used when officers "reasonably believe they must protect themselves or another person present from imminent death or serious bodily injury." (Id.) "[A]ll other reasonable means of apprehension and control" must be exhausted "before resorting to the use of deadly force." (Id.)

Officers are not to "unreasonably endanger themselves" in applying Directive 10. (Id.) Similarly, officers should "ensure their actions do not precipitate the use of deadly force by placing themselves or others in jeopardy by taking unnecessary, overly aggressive, or improper actions." (Id. at 2.) Their firearms should be drawn only when they "believe a potential for serious bodily injury or imminent death to [themselves] or another person exists." (Id. at 3.)

Directive 22 covers the general use of force.*fn2 Described as the "force continuum," the directive provides guidelines to help officers determine what level of force is necessary and appropriate for gaining control of suspects and stopping threatening actions. (See Defs.' Mem. for Summ. J. Ex. G (MPOETC teaching materials on use of force by law enforcement) at 19.) In other words, it teaches "a logical progression through the stages of force." (See id. at 20.) When responding to the threat imposed by a subject, the officer must assess the situation and decide what force would be appropriate, which may consist of mere presence, verbal direction, various kinds of non-deadly force, or deadly force, if necessary. (Id.)

Not only may the officer's use of force escalate with the suspect's actions, it must also de-escalate appropriately. (Id. at 21.) For example, when an individual physically resists arrest, the officer may use appropriate force to gain control. If the individual ceases to resist, the officer must accordingly respond and de-escalate his use of force to reflect the individual's changed conduct.

In determining what amount of force or control is reasonable under the circumstances, the force continuum provides that "[t]he single most important factor [to consider]. . . is the suspect's actions." (Id.) Is the suspect verbally resisting? Physically? If physically, is the resistance defensive or offensive? Does the resistance pose a threat of serious bodily injury or death? (Id. at 20--21.) The officer is also directed to consider the nature of the suspect's offense, the actions of third parties, his own physical condition, the feasibility of force alternatives, and the surrounding environment. (Id. at 19.)

ii. Patrol Procedures Training

Because foot pursuits tend to be "strong in emotion, weak in tactics," police recruits are given basic training on how to conduct them. (See Defs.' Mem. for Summ. J. Ex. L (MPOETC materials on patrol procedures) at 29.) With respect to patrol procedures, the materials primarily emphasize the need to follow department policy. (Id.) The Department has repeatedly admitted it has no policy on foot pursuits.

Officers are also instructed to consider a number of factors regarding themselves,*fn3 the individual,*fn4 the circumstances giving rise to the need to pursue,*fn5 and the local environment*fn6 before deciding to pursue. (See Defs.' Mem. for Summ. J. Ex. M (MPOETC materials on principles of criminal investigation) at 29--30.) The officer is also advised to maintain a proper distance so as to disengage if necessary, and not to split from other officers in the unit. (Id. at 31.)

These considerations are not meant to provide clear answers on when or when not to pursue. The Department appears to leave the decisions regarding foot pursuits to the individual officer's discretion in light of his or her training and experience.*fn7

B. The Office of Integrity and Accountability's Officer Involved Shooting Report

The Integrity and Accountability Office (IAO) of the Philadelphia Police Department was established in 1996 to evaluate and report on the Department's operations. (Pl.'s Supplemental Statement of Facts ¶ 1 [hereinafter Pl.'s Supp. SOF].) Based on these evaluations, recommendations for changes in policies or procedures were made. (Id. ¶ 3.)

In 2005, the IAO released a report entitled "Officer Involved Shootings," which was authored by then-director Ellen Green-Ceisler.*fn8 (Id. ¶¶ 5--6.) The report was the product of a year-long study of officer-involved shootings from 1998 to 2003. ELLEN GREEN-CEISLER, INTEGRITY AND ACCOUNTABILITY OFFICE, OFFICER-INVOLVED SHOOTINGS 1--2 (2005) (attached as Exhibit Z to Defs.' Reply to Pl.'s Opp'n Mem.

(Document #5)) [hereinafter Ceisler, IAO Report]. Its purpose was to "assess whether the [Philadelphia Police Department] has effective and meaningful policies and practices in place to insure that deadly force is only used as authorized by law and policy and that when it is not, that the [Philadelphia Police Department] takes all reasonable and necessary measures to address" the use of deadly force. Id. at 2.

1. Statistical Findings Regarding Officer-Involved Shootings

The report's statistics indicate 759 Philadelphia police officers discharged their weapons in a total of 596 shooting incidents from 1998 to 2003. Id. at 6. In 285 of these incidents, officers fired their weapons at one or more individuals. Id. The remaining 311 incidents involved "shootings at dogs and accidental discharges."*fn9 Id.

During the same five-year period, 35 civilians were killed and 116 wounded as a result of officer-involved shootings. Id. at 11. Of the 35 civilians killed, 22 were armed with guns and had either shot at or pointed their guns at the officer(s) and 7 were armed with knives or other blunt force objects. Id. The remaining six civilians killed were unarmed. Id. at 13.

In highlighting these numbers, the report made no attempt to determine the reasonableness of individual shootings. Id. at 2. That responsibility was vested in the Department "as manifested in the Department's 'use of force' reporting and investigation policies and practices." Id. As a result, "[t]he extent to which the officer-involved shootings that resulted in fatalities are excessive or unreasonable cannot be determined from these raw statistics alone." Id. at 14.

2. Findings and Suggestions Regarding Philadelphia Police Tactics

One section of the report focused on police tactics and judgment and how they influenced the number of officer-involved shootings. It presented the key finding that Philadelphia officers were using "[q]uestionable tactics and judgment," thereby "increasing the likelihood and precipitating the need to use deadly force when other less dangerous responses are available." Id. at 55. Among the problems identified were failures to notify Police Radio, request assistance, seek protective cover, or maintain safe distances when pursuing an individual. Id. at 59.

The report also found evidence of an "accepted and common practice" called "partner-splitting." Id. at 59--60. Described as "an ineffective and an unacceptably high risk tactic," partner splitting is the deliberate decision of a two-officer team to split up and pursue a suspect. Id. A "dangerous variant" is when an officer team splits up so that one officer exits the patrol car to pursue on foot while the other officer drives ahead to cut off the suspect using the vehicle. Id. Whether the partners are on foot or in a vehicle, partner-splitting can be dangerous because it leads to loss of visual contact between the officers, a decreased ability to communicate or assist each other, and an increase in the danger that the officers or civilians will get caught in a cross-fire situation. Id. at 60.

Because 48% of intentional shooting incidents occurred during or were preceded by foot pursuits, the report believed the situation "warrant[ed] closer attention." Id. at 62. It identified four factors influencing Philadelphia police officers' decisions when pursuing on foot: peer pressure, the Department's system of rewards and incentives, inadequate training, and "the John Wayne syndrome." Id. at 61. To combat these dangerous influences on officer decisionmaking, the report recommended instituting policies providing greater guidance on when to engage and pursue. Id. at 62--63. In particular, the Department was encouraged to instruct officers not to engage in foot pursuits if:

1. The officer is alone and the suspect is known or believed to be armed, unless the suspect presents an imminent threat of serious harm to others;

2. The officer(s) lose sight of a fleeing suspect, in which case the foot pursuits must be terminated in favor of containment efforts;

3. The officer has no means of communicating with Police Radio or other officers.

Id. It was hoped these instructions would decrease the probability of officers placing themselves in situations "virtually assuring . . . deadly force would be [their] only option if the situation escalated." Id. at 60. Additionally, the report recommended officers be trained to consider various factors, such as the nature of the offense and the area involved, before deciding to pursue an individual. Id.

C. Events of April 27, 2006

Around 5:34 p.m. on April 27, 2006, Philadelphia Police Officers Kenora Whitmore*fn10 and Jorge Soto conducted a pedestrian stop of Raymond Pelzer and two other males at the intersection of Millick Street and Market Street. (SOF ¶ 39.) Officers Whitmore and Soto patted all three individuals down and had no reason to believe any were armed. (Phila. Police Officer Kenora Whitmore Dep. 43:24S44:16, Apr. 10, 2008.) The officer asked the men to provide identification and proceeded to relay their names and dates of birth over the radio to see if there were any outstanding warrants. (Id. 46:9--20.)

Unbeknownst to Officer Whitmore, Pelzer was wanted as an absconder. Just as Whitmore was about to learn this piece of information, Pelzer began to run north on Millick towards Arch Street. (Id. 47:16--23; SOF ¶ 39.) Whitmore gave out flash information over the police radio describing Mr. Pelzer as a black male wearing a white shirt and blue Dickies pants; she also broadcast his home address. (SOF ¶ 41.) She ...


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