The opinion of the court was delivered by: Dalzell, J.
Bruce Campbell, as Administrator for the estate of his son, Gregory C. Campbell (hereinafter "Campbell"), brings this action against defendant police officers and the City of Philadelphia for violations of 42 U.S.C. § 1983. The suit arises out of an incident in August of 2006 when Philadelphia Police Officers Frank Luca and William Schlosser shot and killed Campbell.*fn1
Plaintiff initially brought this action in seven counts, and the defendants moved for summary judgment on all of them. Plaintiff now concedes that Count I -- with respect to defendant Officers Crown, Trask, and Williams, and Counts II, III, V, VI, and VII -- should be dismissed. Thus, we consider here the summary judgment motion with regard to Count I -- which alleges that defendant police officers Luca and Schlosser violated Campbell's rights under the Fourth and Fourteenth Amendments to be free from unreasonable force in violation of 42 U.S.C. § 1983 -- and Count IV -- a claim under § 1983 against the City of Philadelphia for failure to train, supervise, and discipline the defendant police officers. We exercise jurisdiction pursuant to 28 U.S.C. § 1331.
The factual background on which Count I depends is limited to the events of August 21, 2006. The underpinnings of Count IV, on the other hand, involve the training police officers receive regarding traffic stops, and, according to plaintiff, the degree to which the officers complied with that training. For clarity's sake, we will consider each factual background separately in the context of each claim.
A party moving for summary judgment bears the initial
burden of informing the district court of the basis for its argument that there is no genuine issue of material fact by "identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact", Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets this initial burden, Fed. R. Civ. P. 56 then obliges "the nonmoving party to 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.
A factual dispute is genuine
[I]f the evidence is such that a reasonable jury could return a verdict for the nonmoving party. . . . The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law". Id. at 248.
We "must draw all reasonable inferences in favor of the nonmoving party, and [we] may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000), cited in Amour v. County of Beaver, PA, 271 F.3d 417, 420 (3d Cir. 2001)). Moreover, as our Court of Appeals has cautioned, a court should not prevent a case from reaching a jury simply because the court favors one of several reasonable views of the evidence. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."
Abraham v. Raso, 183 F.2d 279, 287 (3d Cir. 1999) (quoting Anderson, 477 U.S. at 249) (alteration in original).
II. Count I - Excessive Use Of Force By Officers Schlosser And Luca In Violation Of 42 U.S.C. § 1983, Brought Against Those Defendants In Their Individual Capacities
Plaintiff alleges that defendants Luca and Schlosser violated Campbell's Fourth Amendment right to be free from unreasonable seizure when they used deadly force against him, ultimately causing his death. Pl. Resp. at 27-28.*fn2 The defendants argue that they are not liable because the use of force was justified, Def. MSJ 24-26, and they contend that even if we hold that their conduct did violate Campbell's rights under the Fourth Amendment, they are nevertheless entitled to qualified immunity. Def. MSJ 26.
The parties agree about the facts that led to the confrontation in which Campbell was killed.
On the evening of August 21, 2006, Suzanne Snyder drove her mother's silver Acura to Campbell's parents' house in Kennett Square, Pennsylvania. Def. MSJ Ex. A ¶ 1, Pl. Resp. at 3. Campbell and Snyder planned to go to dinner on South Street in Philadelphia. After Snyder picked Campbell up, she asked him to drive, and he obliged. Def. MSJ Ex. A ¶¶ 2-3, Pl. Resp. at 3.
Campbell drove north on Interstate 95 into Philadelphia. He told Snyder that he was upset because he had been fighting with his parents and had broken up with his girlfriend. As they drove, Campbell began to flirt with Snyder and made unwanted advances toward her. Snyder became upset. As Campbell and Snyder argued, Campbell exited I-95 and entered the neighborhood of Port Richmond. He began speeding and drove through a red light. Def. MSJ Ex. A ¶¶ 4-8, Pl. Resp. at 3. Snyder told Campbell she wanted to get out of the car. Def. MSJ Ex. A ¶ 8, Pl. Resp. at 3.
Campbell pulled the car into the parking lot of an Arby's restaurant at 2500 Aramingo Avenue in Philadelphia. Snyder got out and went into the Arby's, and when she returned the car was gone. Def. MSJ Ex. A ¶¶ 9-11, Pl. Resp. at 3.
While Snyder was in the restaurant, Campbell had pulled out of the parking lot and driven north on Aramingo Avenue where he rear-ended a white 1996 BMW that was stopped at a red light, seriously injuring the driver and passenger. John Fetzer, an off-duty police officer with the United States Department of Defense, saw the accident and approached to see if he could help. Def. MSJ Ex. A ¶¶ 14-17, Pl. Resp. at 3. As Fetzer walked up, Campbell drove off, nearly striking Fetzer, and the BMW gave chase. A third driver followed on a motorcycle. Fetzer got into his car and tried to follow, but he could not keep up. Def. MSJ Ex. A ¶¶ 18-21, Pl. Resp. at 3.
The Philadelphia Police Radio received two calls -- one at 7:54:15 p.m. and the other at 7:54:25 p.m. -- reporting the chase. The first caller said that she saw a silver car, a white car, and a man on a motorcycle speeding down Richmond Street, and the second caller said that she saw three cars and a motorcycle "driving like crazy" on Ontario Street toward Richmond Street. Def. MSJ Ex. A ¶¶ 22-23, Pl. Resp. at 3.
Two police officers, Carlos Cortes and Stephanie Flanders, who were nearby in a marked police wagon, also observed the Acura and the BMW speeding while heading east on Ontario Street.*fn3 After seeing the cars disregard a four-way stop sign at the intersection of Ontario and Salmon Streets, the officers notified Police Radio and began following the cars. Def. MSJ Ex. A ¶¶ 22-24, Pl. Resp. at 3.
At the intersection of Edgemont Street and Allegheny Avenue all the cars stopped at a red light, and the BMW pulled to the curb. Officers Cortes and Flanders pulled up behind the Acura and Flanders got out of the police car. As she approached the vehicle, the traffic light turned green and Campbell began to drive away. As he tried to get around traffic on Edgemont Street, Campbell swung to the right and almost struck Flanders. Def. MSJ Ex. A ¶¶ 24-29, Pl. Resp. at 3.
Cortes continued to follow Campbell as he headed east on Allegheny Avenue toward Delaware Avenue. At the intersection of Allegheny Avenue and Richmond Street Cortes pulled up behind the Acura and signaled Campbell to pull over. Campbell then ran a red light to avoid Cortes, and Cortes followed him onto Delaware Avenue. At this point, a police supervisor ordered Cortes to stop the pursuit, and a police helicopter, "TacAir 1", began to monitor the Acura. Def. MSJ Ex. A ¶¶ 24, 30-33, Pl. Resp. at 3.
TacAir 1 observed the Acura driving erratically -- going the wrong way on one-way streets, striking cars, and generally disregarding traffic controls. TacAir 1 was reporting the activity over the police radio throughout. Def. MSJ Ex. A ¶ 34, Pl. Resp. at 3.
At 7:58:36 p.m. the Philadelphia Police Radio received a call from an off-duty police officer saying that the police had stopped Campbell outside the off-duty officer's house at 3629 Thompson Street and that Campbell had again fled. The TacAir 1 observations confirmed this account. Def. MSJ Ex. A ¶¶ 35-36, Pl. Resp. at 3.
Police officers Michael Trask and James Crown were riding in a police car together when they saw Campbell speeding in the wrong direction on the 3500 block of Thompson Street. Trask moved the car to the left to avoid Campbell and then Campbell swerved, indicating that he was driving toward Trask and Crown and forcing Trask to drive onto the sidewalk to avoid a collision. Def. MSJ Ex. A ¶ 37, Pl. Resp. at 3.
At 8:00:01 p.m. TacAir 1 broadcast over the police radio that the Acura was stuck in traffic on Belgrade Street heading toward Allegheny Avenue. Def. MSJ Ex. A ¶ 39, Pl. Resp. at 3.
The parties disagree about what followed.
2. Defendants' Statement Of Facts
The parties agree that as Campbell was sitting in traffic two uniformed police officers who had been in the area, Michael Wilson and Kathleen DeNofa, approached the car on foot. According to defendants, Wilson ordered Campbell to turn off the engine and get out of the car, but Campbell ignored him and continued to grip the steering wheel tightly. Def. MSJ Ex. A ¶ 40.
Meanwhile, the parties agree that another police car, in which Officers Luca and Costanza were riding, approached the scene and pulled onto the west sidewalk of Belgrade Street facing north, toward the Acura. Luca and Costanza parked, got out of their car, and walked past the front of their vehicle toward the Acura. Def. MSJ Ex. A ¶¶ 41, 43.
Defendants contend that as Wilson tried to remove Campbell from the Acura, Campbell moved the gearshift to reverse and the car began to back up.*fn4 Defendants claim that Campbell then moved the gearshift into drive, turned the steering wheel to the right, and accelerated, causing the car to jump the curb. Campbell then drove forward onto the sidewalk where Luca stood. Def. MSJ Ex. A ¶ 42, 44-45.
The car then struck Luca, and, according to the defendants, it pinned him to the green wrought iron fence surrounding the church yard. Def. MSJ Ex. A ¶ 46. Luca drew his weapon and fired into the hood and windshield, striking Campbell. Costanza and Schlosser drew their weapons and fired at the driver's side door of the Acura. Def. MSJ Ex. A ¶ 47.
The parties agree that at 8:00:01 p.m. TacAir 1 broadcast, "Apprehension is gonna be made here in a second. No injuries . . . ah no accidents to Police . . . Shots fired! Shots fired!" Police Radio recorded that an officer was possibly shot. Officer Luca responded on the radio that he was not shot but was pinned between the car and a fence. Williams responded that he tried to remove Campbell from the Acura but could not, so he walked around to the passenger's side, broke the window with his flashlight, and reached in to unlock the door. Def. MSJ Ex. A ¶¶ 48 - 50.
Defendants contend that Officers Trask and Crown, who were monitoring the situation on the police radio, arrived at the scene as shots were being fired and ran to the Acura. Trask and Crown say that they tried to remove Campbell from the car after he had been shot, but Campbell resisted so Trask punched him and Crown sprayed him with mace. They then removed him from the Acura and put him in a police wagon for transport to the hospital. Def. MSJ Ex. A ¶ 51.
Campbell and Luca were taken to Northeastern Hospital where Campbell died from multiple gunshot wounds. Luca sustained injuries including a left tibial plateau fracture "consistent with a compression or impaction-type fracture", right knee cartilage injury, contusions to his abdomen, both legs, and hips and lumbar spine sprain and strain. Def. MSJ Ex. A ¶ 55.
The Philadelphia Police Department investigated the incident, took photos of the scene of the shooting, and took statements from witnesses, including police officers and civilians. Def. MSJ Ex. A ¶¶ 56-58.
3. Plaintiff's Statement Of Facts
Plaintiff contends that the evidence establishes that Luca was not pinned to the fence at any time, including when the shooting started. He also denies that the Acura was revving its engine, spinning its wheels, or accelerating at the time Luca and Schlosser shot Campbell. Pl. Resp. at 28. In support of these contentions, the plaintiff points to the physical evidence of the way the bullets entered the car and of Luca's injuries, as well as the inconsistent eyewitness testimony regarding how Luca was struck and how he was extricated.
Moreover, plaintiff contends that pervasive inconsistencies in the officers' eyewitness testimony and the physical evidence regarding Campbell's ability to resist arrest after he was shot, as well as when Trask and Crown punched him and sprayed him with mace after he was shot, all undermine the credibility of what the officers claim to have witnessed.
a. Angle Of The Bullets Entering The Car In support of the contention that Luca was not pinned to the fence but was moving, plaintiff asserts that Luca shot straight into the hood of the car from five to six feet in front of the car. Pl. Resp. at 32. Plaintiff points to the report of Dr. Albert B. Harper, the President of the Forensic Science Consortium, Def. MSJ Ex. T. Dr. Harper reviewed the Philadelphia Police crime scene report and photographs, the autopsy report and autopsy photographs of Campbell's wounds, as well as examined the Acura itself. Pl. Resp. at 29.
While studying the Acura, Dr. Harper inserted trajectory rods into the twenty-two bullet holes in the hood, windshield, and driver's side door. Based on the trajectory of one shot, Dr. Harper concluded that it was fired into the hood from directly in front of the car. He also opined that, "It is not possible that Officer Luca was 'pinned' between the front of the Acura and the wrought iron fence when this shot was fired." Def. MSJ Ex. T. at 29. To the contrary, Dr. Harper is of the view that after Officer Luca fired the first shot from in front of the car, he then moved to his left to a position on the side of the car somewhere near the front wheel well on the passenger side of the Acura and fired 17 additional shots. The trajectory angles suggest that there are three separate clusters, but with only a small amount of movement from the shooter's right to left. The distribution of shell casings also place Officer Luca on the passenger side of the car and not in front of the car when he fired the shots into the windshield. Officer Luca was most likely some one to two feet from the left (passenger) side of the car when these shots were fired.
b. Physical Evidence Of Officer Luca's Injury
Dr. Harper also opines that Officer Luca was "injured and likely struck by the Acura," id. at 28, as evinced by the fracture of his left tibial plateau and the injury to his right knee. Id. But Dr. Harper maintains that "[t]here is no physical evidence that Officer Luca was pinned between the fence and the front of the automobile." Id.
Plaintiff argues that "Luca exaggerated his injuries to bolster his claim that he [was] struck with great force by the car and pinned." Pl. Resp. at 32. Plaintiff notes that on the night of the accident Luca was taken to the emergency room where he was treated for cuts and contusions and he was discharged that night. Medical Imaging Associates Report 09/12/06, cited in Report of Dr. Harper, Def. MSJ Ex. T at 11, see also Luca's Medical Records Review, Def. MSJ Ex. F at 2 ("X-rays of the right knee, left tibia/fibula and right hand were obtained, and all were interpreted to be unremarkable"). Dr. Harper notes that "upon subsequent follow-up MRI examination on 9/12/06, Officer Luca was diagnosed with '. . . a tiny subchondral fracture line along the anterior aspect of the ( left) lateral tibial plateau, with no significant depression",
Medical Imaging Associates Report 09/12/06, cited in Report of Dr. Harper, Def. MSJ Ex. T at 11. Dr. Harper observes that "[a] fracture of the lateral tibial plateau is consistent with impact trauma from being struck by the bumper of an automobile." Report of Dr. Harper, Def. MSJ Ex. T at 11.
Plaintiff contends that notwithstanding Luca's deposition testimony on February 12, 2009 -- when he testified that "from [his] waist down [he was] just one gigantic black and blue mark," Luca Dep., Def. MSJ Ex. M at 51:9-15 -- no photographs of his injuries were ever taken. Pl. Resp. at 22. Furthermore, though Luca suggested in his testimony that he received injuries to his kidneys as a result of the accident, Luca Dep., Def. MSJ Ex. M at 22:21-23:19, the medical records suggest that Luca had a history of kidney stones and that on the day of the shooting he had cysts on his kidneys. Luca Medical Record Review, Def. Ex. F at 2.
Regarding How Officer Luca
Was Struck And How He Was Extricated
Plaintiff next contends that "[t]he contradictory evidence about how [Luca] was struck and how he was actually pinned corroborates the forensic evidence that he was not pinned, particularly in light of the speed with which he became unpinned", Pl. Resp. at 32, and, furthermore, "[t]he contradictory versions of how Luca became unpinned, and the quickness with which he was whisked away to the hospital support the forensic testimony that he was never pinned". Id.
Luca testified that when he arrived at the corner of Allegheny and Belgrade Streets he drove down the sidewalk and stopped his car parallel to the fence facing Campbell's car, Luca Dep., Def. Ex. M at 96:21-24. Luca then got out of the car and walked past the front toward Campbell's Acura. Id. at 131:2-8. Luca testified that at the time he was experiencing "tunnel vision" because his adrenaline was very high, causing him to see only what was right in front of him. Id. at 131:23-132:8. Luca saw the Acura stopped in traffic, and he testified that he has no memory of seeing the car turn and accelerate, but that he then felt the car touching him and noticed that it was on the sidewalk, id. at 142:1-16, 146:4-12.
Luca testified that he didn't know whether the car hit his right knee or his right waist, but that it hit the right side of his body, and the pressure caused him to turn eastward. Id. at 152:16-22. According to Luca's testimony, he was already standing against the fence when the car hit him; the car did not push him back, but it did pin him to the fence. See, e.g., id. at 156:5-7 ("I think when he turned me, my left portion of my body was against the fence"); 158:1-8 ("Q: . . . you're walking, practically touching the fence, you're hugging the fence, the car strikes you on your right and basically turns you up against the fence that you were walking up against when it struck you? A: I believe so. I don't remember getting forced back.").
Luca testified that as a result of the impact, "I was in severe pain . . . I thought that I was going to get cut in half. I could hear the engine revving, and I think I saw smoke coming from the engine. My legs felt that they were on fire, I started screaming in pain.'" Luca Statement, Apr. 22, 2008, Def. MSJ Ex. M at 3.
Luca testified that immediately after feeling the car on him, "I'm like thinking that I could feel the heat from the car, I could smell the air bags, I reached for my gun and when I went straight down for it, it wasn't there. It was further back, so I had to reach back to get it. I got my gun out and I just started shooting." Luca Dep., Def. Ex. M at 155:12-18. See also id. at 158:19-22 ("Q: And at the moment you are struck by the vehicle, you reach for your weapon; correct? A: Yes."). Luca adamantly denied firing at the vehicle as it was moving toward him: "I wanted you to understand that I wasn't -- I wanted you to understand that when I started firing, the car was already there. I don't want you to think that I was shooting the car as it was coming towards me." Id. at 166:18-22.
Other eyewitness testimony of the details of the shooting and of how the car allegedly pinned Luca to the fence ...