The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge
Rudolph Henry and Ruth Henry, husband and wife ("Plaintiffs"), brought this action individually and as co-administrators of the estate of their deceased son, Jason Henry ("Henry"), seeking compensatory and punitive damages against Philadelphia Police Officer Daniel Zorawski, Police Officer George Orth, Police Sergeant Christopher Bradshaw, and Police Sergeant Joseph Schiavone (the "Defendant Officers"), as well as the City of Philadelphia (the "City"). Plaintiffs' claims relate to the police response to Mrs. Henry's request for assistance at her home on August 5, 2007 in light of her son's bizarre and violent behavior. The encounter culminated in Sergeant Bradshaw employing a Taser in an effort to subdue Henry and Officer Zorawski then firing the shots that killed him. Plaintiffs have asserted federal claims against the Defendant Officers and the City under 42 U.S.C. § 1983 and additional state law claims against Zorawski only.
The parties consented to magistrate judge jurisdiction. Presently before the Court is the motion of the Defendant Officers seeking summary judgment on all claims brought against them.
For the reasons set forth below, we will grant this motion in part and deny it in part, permitting Plaintiffs to pursue claims only against Sergeant Bradshaw and Officer Zorawski.
II. FACTUAL BACKGROUND*fn1
Ruth Henry called 911 at approximately 11:13 a.m. on August 5, 2007, requesting police assistance at her home at 6883 N. 19th Street in Philadelphia. Upon their arrival at about 11:22 a.m., Officers Patrick Delany and Christopher Hearn found Mrs. Henry outside the residence. She explained to them that she had "called the cops" because her son was "on something" and had tried to "attack" her with a scale, which prompted her to run outside even though she was barefoot. (Delany Dep. [Pl. Ex. B] at 19-22.). Officers then observed Henry walk out of the back door of the house, through the "breezeway" that separated the Henry house from a neighboring house, and toward 19th Street. When he reached the top of a set of steps that leddown to the sidewalk, he threw a hatchet, a knife, and a spackling knife at the officers, one of whom was only 10 to 12 feet away. (Delany Dep. [Pl. Ex. B] at 40-48.)Hearn and Delany hit their "assist buttons," and Hearn reported on the Police Radio that someone was throwing an axe and knives at them. (Delany Dep. [Pl. Ex. B] at 42-43; Police Transmissions, 8/5/07 [Pl. Ex. C] at 11:38.10 a.m.) Hearn then tried to apprehend Henry, but Henry slapped him in the face with his shoe and ran back into the house. (Delany Dep. [Pl. Ex. B] at 48-51.) Over the next ten minutes, various other officers arrived on the scene. One later described Henry as appearing "out of it" or "high on something." (Hummel Dep. [Pl. Ex. F] at 32.) When Sergeant Bradshaw arrived on the scene, he was advised by Mrs. Henry that her son "may have been under the influence of drugs." (Bradshaw Dep. [Pl. Ex. G] at 22.) Around this time,Henry threw a hammer and a cordless drill from a second-story window at two officers positioned at the rear of the house. (Hummel Dep. [Pl. Ex. F] at 13-14, 17, 53-54; Delany Dep. [Pl. Ex. B] at 50-52.)
At 11:49 a.m., one of the sergeants on the scene, Christine McShea, declared a "Barricaded Person" situation pursuant to Philadelphia Police Department Directive 111.*fn2 (Phila. Police Dept. Mem. re: PS# 07-51, dated 9/2/08 [Pl. Ex. K (excerpts)], at 2.) In light of the barricade designation, Defendant Sergeant Bradshaw directed officers to "clear out," away from the "zone of protection" that is designated by the Directive. Nonetheless, four officers who were present at the scene - Defendants Sergeants Bradshaw and Schiavone and Officers Orth and Zorawski - remained in the breezeway area to "keep an eye on [Henry]" because he continued to carry a knife and "kept coming to the window" and the door. (Bradshaw Dep. [Pl. Ex. G] at 28.) While awaiting the arrival of the SWAT team and crisis negotiators, Orth continued to speak with Henry, "trying to calm him down" and "keep him under control." (Id. at 34, 43.) When Orth asked Henry to put his knife down and come out, however, Henry responded that "there [were] a lot of cops out there and that he "[was] not coming outside." (Bradshaw Dep. [Pl. Ex. G] at 45.) Plaintiff's evidence indicates that other officers may also have communicated with Henry during this time. See Czepiel Stmt., 9/5/07 [Pl. Ex. L] (reporting that Bradshaw, Shiavone, and Orth were talking to Henry to "have him come out"); Phila. Police Dep't Mem. re: Police Shooting #07-51, 9/2/08 [Pl. Ex. K] at 2 (reporting that "[a]t various times, Sgt. Bradshaw, Sgt. Schiavone, and P/O [sic] Orth attempted to persuade Henry to come outside and surrender).
Henry emerged from the front door at 11:56 a.m. and stood on the landing at the top of the steps leading to the breezeway area. (Phila. Police Dep't Mem. re: PS #07-51 [Pl. Ex. K] at 2.) Bradshaw had positioned himself near the door so that, "if [Henry] came out with the knife, [Bradshaw] would shoot him with the taser." (Bradshaw Dep. [Pl. Ex. G] at 49, 63.) According to Plaintiffs' witnesses, who observed from across the street, Henry had his left hand up in the air and had a cell phone in his right hand, which he held to his right ear. They assert that he did not have a knife in his hand. (Ruth Henry Aff., 4/13/10 [Pl. Ex. N] at ¶¶ 5-8; Bernadette Williams Aff., 4/13/10 [Pl. Ex. O] at ¶¶ 6-9. See also Antoinette Jackson Aff., 4/22/10 [Pl. Ex. P] at ¶¶ 6, 9 (stating that Henry's hands were over his head when he walked out of the house and that "[i]t looked to [her] that Jason Henry was unarmed and trying to surrender when he walked out of his house").)*fn3
Bradshaw and the other three Defendant Officers were all within six feet of Henry when he stood near the top of the steps leading from the front door. (Delany Dep. [Pl. Ex. B] at 79-80.) Just after Henry walked out, Sgt. Bradshaw employed the Taser on him from a distance of less than ten feet. (Bradshaw Dep. [Pl. Ex. G] at 52-57, 63-64. See also Ruth Henry Aff. [Pl. Ex. N] at ¶¶ 9-10 (reporting that she heard the loud buzz of the Taser "almost immediately after Jason stepped out of the entrance").) Henry fell onto the front door steps. (Ruth Henry Aff. [Pl. Ex. N] at ¶ 10.) Several officers rushed towards him and, "almost immediately thereafter," several shots were fired. (Id. at ¶¶ 11-12.) The police department's subsequent investigation of the incident confirmed that Officer Zorawski fired his weapon seven times and that Henry was struck multiple times. (Phila. Police Dept. Mem. re: PS#07-51, dated 9/2/08 [Pl. Ex. K], at 2.) The police transported Henry to the hospital but hewas pronounced dead a short time later. (Id.) Following upon its investigation, the police department concluded that after Henry was shot with the Taser and fell, he got up and came toward Officer Orth with a knife in his hand; thatOrth pushed him away, but he then came towards Officer Zorawski with the knife still in his hand; and that Zorawski blocked his knife with one hand and drew his gun with the other and fired upon Henry. (Id. at 8.)
Plaintiffs timely filed suit against the City and unknown officers, but subsequently amended their complaint to state claims against the four Defendant Officers. (Doc. No. 9.) Set out in the amended complaint are:
* Counts I and II: § 1983 claims against Officer Zorawski for deprivation of Fourth and Fourteenth Amendment rights based upon Zorawski having shot Henry (Am. Compl. ¶¶ 51-64);*fn4
* Counts III and IV: § 1983 claims against Officer Orth for deprivation of Fourth and Fourteenth Amendment rights based upon Orth having allegedly induced Henry to come out of Plaintiffs' residence and thereby exposing him to force by the police (Am. Compl. ¶¶ 65-79);
* Counts V and VI: § 1983 claims against Sergeant Bradshaw for deprivation of Fourth and Fourteenth Amendment rights relating to Bradshaw having allegedly induced Henry to come out of Plaintiffs' residence and for deploying a Taser gun on him (Am. Compl. ¶¶ 81-94);
* Counts VII and VIII: § 1983 claims against Sergeant Schiavone for deprivation of Fourth and Fourteenth Amendment rights based upon Schiavone having allegedly induced Henry to come out of Plaintiffs' residence (Am. Compl. ¶¶ 95-109);
* Counts IX and X: § 1983 claims against the City for deprivation of constitutional rights and privileges due to the City's alleged failure to train, supervise, control and discipline officers and its alleged tolerance of improper customs and practices of its officers (Am. Compl. ¶¶ 110-22); and
* Counts XI and XII: state law claims against Officer Zorawski for assault and battery (Am. Compl. ¶¶ 123-38).
Pursuant to a revised scheduling order issued on March 1, 2010, the Court bifurcated the discovery and briefing schedule with respect to Plaintiffs' claims against the City and the Defendant Officers. (Doc. No. 39.) In accordance with that order, as revised, the Defendant Officers filed their motion for summary judgment on March 26, 2010. (Doc. No. 40.)*fn5 Plaintiffs filed their memorandum of law in opposition, with supporting exhibits, on April 26, 2010. (Doc. No. 42.) The Defendant Officers filed a reply brief on May 10, 2010. (Doc. No. 44.) After obtaining leave of court, Plaintiffs filed a sur-reply on May 14, 2010. (Doc. No. 46.) The matter is now ripe for review.*fn6
IV. SUMMARY JUDGMENT STANDARD
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2) (Dec. 1, 2009). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it could be said to affect the outcome of the case under governing law. Id. The moving party bears the initial burden of "'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In order to successfully oppose a properly supported motion, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed. R. Civ. P. 56(e)). In reviewing the summary judgment record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). The court may not make credibility determinations or weigh the evidence in reaching its conclusion. See Anderson, 477 U.S. at 255 (observing that these are jury functions).
In their response to the summary judgment motion, Plaintiffs have clarified the particular theories of relief upon which their federal claims are premised as to each of the four Defendant Officers.*fn7 Against Defendant Officer Zarowski, who fatally shot Henry, Plaintiffs assert a claim based upon the use of allegedly excessive force in violation of Henry's Fourth Amendment right to be free from unreasonable seizures. Against Defendant Sergeant Bradshaw, who employed the Taser on Henry, Plaintiffs similarlyassert a claim of excessive force in violation of the Fourth Amendment. Plaintiffs also assert against Sergeant Bradshaw a claim premised on the due process provision of the Fourteenth Amendment based upon a state-created danger theory and relating to Bradshaw's alleged role in coaxing Henry out of the house, leading to the deployment of deadly force in his seizure. Against both Defendant Officer Orth and Defendant Sergeant Schiavone, Plaintiffs bring only this due process, Fourteenth Amendment claim, again based upon a state-created danger theory. See Pls.' Mem. of Law in Opp. to Summ. Jmt. at 31 (explicitly disavowing a characterization by Defendants that all of Plaintiffs' § 1983 claims arose under the Fourth Amendment).
The Defendant Officers assert, however, that all of Plaintiffs' claims should be measured against the standards of the Fourth Amendment, in that all of the challenged conduct related to an arrest. They further contend that all of the claims fail under that standard in light of circumstances that they contend justified the use of force. Alternatively, they assert that any claims that might be considered under the Fourteenth Amendment fail because, inter alia, the defendants' conduct was not conscience-shocking and because they did not increase the risk of harm to Henry. Finally, the Defendant Officers contend that Plaintiffs' claims against them fail as a matter of law under the doctrine of qualified immunity.
We first consider the claims against Sergeant Bradshaw and Officer Zorawski as to which, the parties agree, the officers' actions must be judged in light of the Fourth Amendment's reasonableness standard. We then address the additional claims, against Sergeants Bradshaw and Schiavone and Officer Orth, relative to conduct that did not involve the application of ...