The opinion of the court was delivered by: Juan R. Sanchez, J.
Defendants Shamaya Allen-Bullock (Allen) and the City of Philadelphia ask this Court to grant summary judgment in their favor on Plaintiff Raheema Howard's 42 U.S.C. § 1983 and Pennsylvania state law claims, which Howard brought on behalf of her deceased husband, Ricky Howard. Because Defendants have failed to show there is no genuine dispute as to any material fact, this Court will deny their motion.
This case arises from the fatal shooting of Raheema Howard's husband, Ricky, by Allen, a Philadelphia police officer. While the circumstances of Ricky Howard's death are hotly disputed by the parties, they agree on the following facts. On March 26, 2008, Ricky Howard became involved in a scuffle with another man, Edward Parks, in which both men were struggling to gain control of a gun. Responding to a call of shots fired, Allen arrived at the scene, a parking lot near 30th Street and Lehigh Avenue in Philadelphia, and saw the men struggling over an object. As she approached the men with her firearm drawn, she identified the object as a gun. She directed the men to drop the gun a number of times before shooting twice. Both shots she fired hit Ricky Howard, and he died from the gunshot injuries he sustained.
The events which unfolded immediately before Allen fired her gun are in dispute. Allen asserts that, when she told both Parks and Howard to drop the gun, Parks complied and stepped away from Ricky Howard while Howard "rolled over and pointed the gun directly at [her]." Defs.' Statement of Undisputed Facts ¶ 40. Then, "[f]earing for her life, PO Allen discharged her weapon twice at Ricky Howard." Id. at ¶ 41. Raheema Howard, on the other hand, contests Allen's account, arguing the testimony of Allen's supervisor, Sergeant Nicholas Smith,*fn1 her colleague, Inspector Rebstock,*fn2 and eye witness Elaine Smith*fn3 cumulatively suggests Ricky Howard never separated from Parks, never gained exclusive control of the gun, and never pointed the gun at Allen. Instead, Raheema Howard suggests her husband was being robbed by Parks and was struggling with Parks to avoid being shot before he was fatally shot by Allen.
Howard filed her Complaint in the Court of Common Pleas in Philadelphia on June 23, 2010, claiming Allen and the City of Philadelphia violated her husband's constitutional rights by Allen's use of lethal force against him. She also brought assault and battery claims against Allen pursuant to Pennsylvania law. On June 30, 2010, the City of Philadelphia removed the case to this Court and, following the close of discovery, Defendants seek an entry of summary judgment in their favor.
Viewing the evidence in the light most favorable to the non-movant, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the burden of showing no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute over a material fact is "genuine" if resolution of such fact would permit a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In her response to Defendants' motion for summary judgment, Raheema Howard states she is abandoning her Pennsylvania law claims. Thus, this Court will address Howard's sole remaining claim, asserted on her deceased husband's behalf pursuant to 42 U.S.C. § 1983, in which she argues (1) Allen violated her husband's Fourth Amendment rights by using excessive and lethal force against him, and (2) the City of Philadelphia is liable for failing to properly train its police officers and for its custom of responding with deliberate indifference to excessive force used by members of its police force.
To prove a violation of Ricky Howard's Fourth Amendment rights, Howard must show her husband was seized, and such seizure was unreasonable. Brower v. Cnty. of Inyo, 489 U.S. 593, 599 (1989). There is "no question" a police officer's use of deadly force is a seizure subject to the Fourth Amendment's reasonableness requirement. Tennessee v. Garner, 471 U.S. 1, 7 (1985). Thus, the material factual dispute at issue in this case is whether Allen's actions were reasonable. The use of lethal force is only reasonable when "the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Id. at 3; see also Abraham v. Raso, 183 F.3d 279, 294 (3d Cir. 1999) ("[T]he ultimate question is not whether [the police officer] really was in danger as a matter of fact, but . . . whether it was objectively reasonable for her to believe that she was."). Reasonableness is judged "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham v. Connor, 490 U.S. 386, 396 (1989).
Here, Allen asserts her actions were reasonable because Ricky Howard pointed a gun at her. Her account of the events, however, is undermined by the reports of other police officers and witnesses who did not see him take such an action. Because the victim of a police officer's deadly force is unable to testify, the Third Circuit has instructed district courts to "be cautious on summary judgment to ensure that the officer is not taking advantage of the fact that the witness most likely to contradict [her] story - - the person shot dead - - is unable to testify." Abraham, 183 F.3d at 294 (citation and internal quotation marks omitted). In exercising this caution, a district court "should avoid simply accepting what may be a selfserving account by the officer. It must also look at the circumstantial evidence that, if believed, would tend to discredit the police officer's story, and consider whether this evidence could convince a rational fact finder that the officer acted unreasonably." Lamont v. New Jersey, No. 09-1845, 2011 U.S. App. LEXIS 4104, at *9 (3d Cir. Mar. 4, 2011) (citing Abraham, 183 F.3d at 294) (quotation marks and internal alterations omitted). Raheema Howard has presented evidence which, if believed by the jury, calls into question Allen's account of the events before she shot Ricky Howard. Specifically, if Ricky Howard never had exclusive control of the firearm at issue, and never pointed the gun at Allen, the jury may find it was not objectively reasonable for Allen to believe she was in danger and to shoot Howard. Furthermore, if neither man pointed the firearm at issue at Allen, a reasonable jury can find Allen violated Howard's Fourth Amendment rights. Because there is a genuine factual dispute regarding what transpired before Allen shot Howard, summary judgment for Allen will be denied.
Allen argues in the alternative that, even if this Court determines there is a genuine dispute over a material issue of fact sufficient to permit this case to be heard by a jury, Allen is entitled to qualified immunity because her actions did not violate clearly established law. The qualified immunity doctrine shields a government official "from liability for civil damages insofar as [her] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether qualified immunity applies, a court must consider, viewing the facts in the light most favorable to the plaintiff, (1) whether there was a violation of a constitutional right and (2) whether such a right was clearly established at the time of the violation.
Saucier v. Katz, 533 U.S. 194, 201 (2001). Because this Court has found that, when the evidence is viewed in the light most favorable to Howard, Allen violated Howard's constitutional rights, only the second Saucier factor will be addressed.
With regard to the second factor, Allen argues "no objectively reasonable police officer would have known that discharging his or her weapon at a person pointing a gun at the officer would be considered an excessive use of force and therefore violate the clearly established law." Def.'s Mot. for Summ. J. 8. In making this argument, however, Allen fails to view the facts in the light most favorable to the non-moving party, as this Court must do in reviewing Allen's motion. Here, this Court has determined that a triable issue of fact exists as to whether Allen violated Howard's Fourth Amendment rights. "Just as the granting of summary judgment is inappropriate when a genuine issue exists as to any material fact, a decision on qualified immunity will be premature when there are unresolved disputes of historical fact relevant to the immunity analysis." Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002). Here, if all factual disputes are resolved in Howard's favor at trial, and the jury determines Howard did not pose a threat to Allen or others around her, then Allen would not be protected by qualified immunity because a police officer's use of lethal force against a non-threatening person is a clearly established violation of ...