The opinion of the court was delivered by: Stengel, J.
This case arises from the March 16, 2009, fatal shooting of Sontosh Clarke by Philadelphia Police Officer Britton Brown. Plaintiff Rafia Grooms, Clarke's mother, brings this action under 42 U.S.C. § 1983 and Pennsylvania state law.*fn1 Grooms alleges Brown used excessive force in his encounter with Clarke. Brown seeks summary judgment on all claims. For the following reasons, I will deny Brown's motion.
On the evening of March 16, 2009, Philadelphia Police Officers Britton Brown and Arthur Lee attempted stop a vehicle driven by Sontosh Clarke for a traffic violation.*fn3
(Doc. No. 22,*fn4 Ex. A, ¶ 6.) Clarke pulled into a driveway, exited the vehicle, and fled. (Id. at ¶ 9.) Brown pursued Clarke on foot while Lee stayed with the patrol car. (Id. at ¶ 11.)
The parties vigorously dispute what took place next. Brown, the only witness to the shooting, testified to the following basic facts. After a short pursuit, Brown struck Clarke from behind with his ASP baton; Clarke turned and confronted Brown. (Brown Dep. at 39-40.) Clarke "stripped" Brown of his baton, and the two men engaged one another, first on their feet and then on the ground. (Id. at 43-46.) Brown maneuvered himself onto Clarke's back, with Clarke's face to the ground. (Id. at 59-62.) As Brown reached for his handcuffs, Clarke managed to flip Brown onto his back, bringing the men face to face. (Id. at 67-71.) Clarke, now on top, grabbed Brown's neck and began punching Brown's head. (Id. at 74-76.) Brown claims Clarke was "pushing down very hard" on his neck. (Id.) Brown unholstered his weapon with his right hand after he began having trouble breathing and started seeing spots. (Id. at 80-82.) Clarke grabbed Brown's right wrist. (Id. at 84-85.) Brown, fearing Clarke was attempting to take his weapon, began thrashing his body and kicking his legs. (Id. at 86-87.) After freeing his right hand from Clarke's grip, Brown fired three shots, all of which struck Clarke. (Id.) Clarke died minutes later; he was unarmed throughout the encounter.
With no witnesses to rely on, Grooms bases her version of the facts on physical evidence and perceived inconsistencies in Brown's recollection. Grooms notes that Officer James Edmiston and Lieutenant David Merrick, both of whom observed Brown after the shooting, testified that Brown had no visible injuries to his head, face, or neck. (Edmiston Dep. at 19; Merrick Dep at. 40-41.) Officer Lee testified that he observed "redness," but no bruising, around Brown's neck and jaw. (Lee Dep. at 56-57.) Brown himself testified that, although the top of his head felt "very tender," he didn't notice any wounds to his face or neck. (Brown Dep. at 111-12.) Brown also stated he was having trouble breathing before Clarke grabbed his throat. (Id. at 80.) Grooms argues this testimony is inconsistent with Brown's assertion that Clarke was forcefully choking and punching him. Grooms also disputes Brown's recollection of the shooting. Clarke was shot twice in the chest and once in the back. (Gulino Dep. at 10-18.) Brown testified that he couldn't recall the position of Clarke's body during the shooting:
Q: When you fired your weapon at Mr. Clarke he was trying to get away from you, wasn't he?
Q: At some point when you were firing, his back was turned to you?
A: I don't know. (Brown Dep. at 113-14; see also id. at 92, 130.) Brown stated that all he saw was "a body, like a white shirt," since he "just fired and turned away." (Id. at 91.) Grooms also points to the testimony of Dr. Gulino, the chief medical examiner for the City of Philadelphia. Dr. Gulino testified that the lack of soot or gunpowder stippling on Clarke's body suggests that Brown fired his weapon at least two feet away from Clarke. (Gulino Dep. at 28.) Grooms argues that a reasonable jury ...