The opinion of the court was delivered by: O'neill, J.
Plaintiff Romanus Miles filed the instant action on August 9, 1994. He claims that the individual defendants used excessive force when they arrested him in violation of his rights under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments to the Constitution of the United States. Plaintiff also claims that defendants are liable for assault and battery under Pennsylvania law. Defendants Retired Police Officer Alfred Elliott and Police Officer Christopher Lewis now move for summary judgment in their favor on all claims.*fn1 For the reasons that follow, I will grant in part and deny in part defendants' motion.
On July 12, 1993, a jury convicted plaintiff of aggravated assault on Officers Lewis and Elliott and of carrying a firearm on a public street. Commonwealth v. Monte Miles, November Term, 1992, No. 2225 3/3 (Pa. Ct. Comm. Pl. Phila. Cnty.); see also Defs.' Ex. A. Plaintiff's conviction and his claims in this action stem from events occurring at the corner of Castor and Adams Avenues in Philadelphia, Pennsylvania at about 1:00 a.m. on September 1, 1992.*fn2
The parties offer conflicting details in their accounts of the night's events.
Defendants contend that on the evening in question defendant Lewis and his partner Officer Tyrone Randall, in an unmarked vehicle and in plainclothes, were assigned to conduct surveillance of a bar for a possible robbery suspect because of a series of bar holdups in the northeast part of Philadelphia. Defs.' Ex. C at 7:24-8:15, 10:3-6; Defs.' Ex. D at 7:12-24. While on assignment they noticed a male approaching the bar who fit the description of a suspect who had robbed another bar in the surrounding area. Defs.' Ex. C at 8:16-24. While they sat in their vehicle, a male later identified as plaintiff walked towards the bar, looked in, walked away and returned with a second male carrying a red motorcycle helmet, later identified as James McNeill. Defs.' Ex. C at 10:3-18. The men appeared to argue between themselves and walked away from the bar. Defs.' Ex. C at 10:22-24. Officers Lewis and Randall decided to stop plaintiff and McNeill. Defs.' Ex. C at 10:3-18.
Randall communicated over police radio the details of their surveillance of plaintiff and McNeill and requested that backup respond without lights and sirens. Defs.' Ex. D. at 16:1-5. Randall drove to the corner of Castor and Adams, where plaintiff and McNeill had stopped walking. Defs.' Ex. D at 19:22-20:13, 22:12-23:4. Randall and Lewis exited the unmarked car with their police badges around their necks and identified themselves as Philadelphia police officers. Defs.' Ex. C at 15:3-16:5; Defs.' Ex. D at 23:1-12, 24:12-21. Randall yelled to plaintiff and McNeill, "Put your hands up! Police!" Defs.' Ex. D at 24:22-25:20. Lewis told plaintiff and McNeill to put their hands up where he could see them. Defs.' Ex. C at 16:6-9. Plaintiff responded by running away, westbound on Adams Avenue. Id. at 17:13-20. Lewis ran after plaintiff. Id. at 18:1-24.
Both plaintiff and Lewis then slowed from a run to a walk. Id. at 20:14-21, 23:1-24:13. Plaintiff had his back to Lewis, but looked over his shoulder in Lewis' direction and began to walk into the street. Id. at 24:14-16, 25:11-21. Lewis continued to yell "Police!" and gave a description of plaintiff over police radio. Id at 24:12-13, 26:10-22. He then observed plaintiff "fumbling" as if he was going to take something out of his clothing. Id. at 21:1-28:8. He saw that plaintiff had removed an object from his clothes and, when plaintiff put the object behind his back, Lewis realized it was a gun. Id. at 39:5-16. He heard a sound that he believed to be a shot and saw a flash. Id. at 39:17-22. Lewis thought plaintiff had aimed the gun at him when he saw plaintiff fire the gun from behind his back, looking over his shoulder. Id. at 40:13-23. Lewis then took cover behind a vehicle and heard a series of three or four shots. Id. at 43:2-10, 44:11-46:3, 48:9-17.
The shots Lewis heard were four shots fired by defendant Elliott. Defs.' Ex. B at 34:10-12. Elliott and his partner Officer Jose Cruz were assigned to the stakeout unit of the Philadelphia Police Department, each wearing a Philadelphia police uniform and traveling in a marked police wagon. Id. at 7:23-8:2, 10:22-11:21. Elliott and Cruz responded as backup to a police radio call of two persons fitting the description of robbery suspects under surveillance near the intersection of Castor and Adams Avenues. Id. at 9:8-24, 10:12-16. Elliott understood that the suspects were going to be stopped for an investigation. Id. at 9:14-24. He drove the marked police wagon on Adams Avenue towards Castor Avenue. Id. at 10:12-16. As he drove, he saw plaintiff walking in the opposite direction on Adams to the left of the wagon. Id. at 12:3-16, 13:9-18. Elliott stopped the vehicle, exited through the driver side door and began walking towards plaintiff. Id. at 13:19-24, 14:7-13.
According to Elliott, plaintiff turned and looked at Elliott over his shoulder and "fumbled in front of his sweater." Id. at 14:14-15, 21:13-20. Plaintiff then "brought his right arm around behind him with an object and as he put it around . . . his back [Elliott] saw that it was a shotgun . . . ." Id. at 14:18-20. Plaintiff fired the gun at Elliott, who was twenty or twenty-five feet away from him. Id. at 14:21-24; 22:2-15. Elliott responded by drawing his weapon and firing a shot at plaintiff. Id. at 22:21-24; 23:6-7. Elliott's first shot struck the rear of a vehicle. Id. at 27:2-5. Plaintiff ran away from Elliott, varying his course in an effort to throw off Elliott. Id. at 27:13-22, 28:1-4. While trying to evade Elliott, plaintiff "had the shotgun back up again as if to shoot." Id. at 28:10-11; see also id. at 28:22-23 ("[H]e still was trying to shoot with the shotgun."). Less than five seconds after firing his first shot, Elliott fired a second shot at plaintiff. Id. at 29:10-30:23. Plaintiff kept running. Id. at 35:6-11. Less than five seconds later, Elliott fired a third shot at plaintiff. Id. at 36:20-37:18. Not knowing whether his second or third shots had struck plaintiff, id. at 38:11-39:2, Elliott fired a fourth shot at plaintiff as he continued to pursue plaintiff further up the street. Id. at 44:20-45:3. Plaintiff then fell to the ground and shouted "I am shot! I am shot!" Id. at 48:18-19. Elliott stopped firing. Id. at 48:20.
Elliott testified that after he stopped firing, Lewis ran past him towards plaintiff. Id. 61:23-62:17. Lewis testified that after he heard the shots, he looked from behind the vehicle where he had taken cover and saw plaintiff falling to the ground. Defs.' Ex. C at 48:9-50:2. He dropped his police radio and ran to plaintiff, jumping on him, grabbing his arms to pull them behind plaintiff and then handcuffed plaintiff. Id. at 56:3-65:18. Lewis testified that the only other physical contact he had with plaintiff after he handcuffed him was to place plaintiff on his side because he had been shot. Id. at 65:19-67:7, 69:1-17. Lewis testified that he did not strike or kick plaintiff and that he did not know if anyone else struck or kicked plaintiff. Id at 70:7-15. Elliott likewise testified that he had no physical contact with plaintiff after plaintiff fell to the ground. Defs.' Ex. B at 64:4-7.
In his response to defendant's motion for summary judgment, plaintiff does not dispute defendants' assertion that he possessed and fired a weapon on September 1, 1992. Nor does he dispute defendants' account of the events that led to their pursuit of plaintiff on that night. However, plaintiff's testimony includes significant differences from defendants' testimony with respect ...