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Geist v. Ammary

United States District Court, E.D. Pennsylvania

August 22, 2014

VICTORIA GEIST, Mother and Natural Guardian of Keshana Wilson, A Minor, Plaintiff,
v.
JASON AMMARY, ET AL., Defendants

Decided August 21, 2014.

Page 468

[Copyrighted Material Omitted]

Page 469

For Victoria Geist, MOTHER AND NATURAL GUARDIAN OF KESHANA WILSON, A MINOR, Plaintiff: RICHARD J. ORLOSKI, LEAD ATTORNEY, ORLOSKI LAW FIRM, Allentown , PA; MAXWELL S. KENNERLY, THE BEASLEY FIRM, Philadelphia , PA.

For Jason Ammary, City of Allentown, Defendants: JOHN PHILIP MORGENSTERN, RUFUS A. JENNINGS, DEASEY MAHONEY, VALENTINI, NORTH LTD., Philadelphia , PA.

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MEMORANDUM

LAWRENCE F. STENGEL, J.

This is a § 1983 action against a police officer and the City of Allentown brought by Victoria Geist on behalf of her daughter, Keshana Wilson. The plaintiff's excessive force claim and failure-to-train claim stem from a school police officer tasing Ms. Wilson in the groin. Much of the incident is caught on a security tape. The defendant has filed a motion for summary

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judgment. For the following reasons, I will deny this motion.

I. BACKGROUND[1]

Victoria Geist is the mother of Keshana Wilson, who was fourteen years old at the time of the alleged incident.[2] At that time, Ms. Wilson was about 5 foot, 8 1/2 inches and about 190 pounds.[3] She was in her first year at Allen Dieruff High School in Allentown, PA.[4] Defendant Jason Ammary is a police officer employed by the Allentown Police Department, who was assigned as a School Resource Officer (SRO) at Dieruff High School beginning in 2011.[5]

On Thursday, September 29, 2011, Ms. Wilson was walking in the street near Dieruff High after the students at the school were dismissed for the day.[6] Ms. Wilson, who is bi-racial, was walking with two other female friends--one of whom was white and one of whom was light-skinned Hispanic.[7] At the same time, Officer Ammary and school security officers were instructing students to disperse and to move out of the roadway.[8]

Subsequently, Officer Ammary grabbed Ms. Wilson's arm from behind without identifying himself as a police officer.[9] Officer

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Ammary did not seize or touch the two white companions, who were walking with Ms. Wilson. Ms. Wilson pulled away and continued to walk away from Officer Ammary.[10] Officer Ammary then grabbed both her arms and twisted her around to face away from him.[11] He pushed her against a parked car nearby.[12] A struggle between them ensued.[13]

At one point, Officer Ammary stepped away from Ms. Wilson and deployed his Taser.[14] The Taser ejected barbs attached

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to electrical wires.[15] These barbs hit Ms. Wilson in the lower abdomen and groin.[16] After she was hit in the groin, Ms. Wilson fell to the ground.[17] She remained on the ground until she was transported to the hospital by ambulance, to have the barbs removed.[18] Part of the incident was captured on a school security video.

Four or five security officers from the school were also present at the scene of the incident.[19] After the tasing, crowds of students watching the incident began yelling obscenities at Officer Ammary.[20] Another disruptive student was placed under arrest.[21] Ms. Wilson was later adjudicated delinquent on the charges of Failure to Disperse and Resisting Arrest.

On December 7, 2011, Ms. Geist, on behalf of Ms. Wilson, filed this action against Officer Ammary and the City of Allentown under § 1983, alleging excessive force and Monell liability. As a result of the tasing, Ms. Wilson alleges that she suffered pain, emotional distress, and humiliation.[22] I previously dismissed the

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plaintiff's claims for false arrest and retaliatory filing of charges.[23] I had also referred several discovery disputes to the Honorable Magistrate Judge Henry Perkin, which he has since resolved.[24] The defendants now move for summary judgment.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate " if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute is " genuine" when " a reasonable jury could return a verdict for the nonmoving party" based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is " material" when it " might affect the outcome of the suit under the governing law." Id.

A party seeking summary judgment initially bears responsibility for informing the court of the basis for its motion and identifying those portions of the record that " it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial Celotex burden can be met simply by demonstrating to the district court that " there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met its initial burden, the adverse party's response must cite " particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1). Summary judgment is therefore appropriate when the non-moving party fails to rebut by making a factual showing that is " sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

Under Rule 56 of the Federal Rules of Civil Procedure, the court must draw " all justifiable inferences" in favor of the non-moving party. Anderson, 477 U.S. at 255. The court must decide " not whether . . . the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Id. at 252. If

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the non-moving party has produced more than a " mere scintilla of evidence" demonstrating a genuine issue of material fact, then the court may not credit the moving party's " version of events against the opponent, even if the quantity of the [moving party's] evidence far outweighs that of its opponent." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

III. DISCUSSION

" To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the Constitution and the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The plaintiff asserts both an excessive force claim against Officer Ammary and a failure-to-train claim against the City of Allentown. I will address each in turn.

a. Claim of Excessive Force Against Officer Ammary

The plaintiff alleges that the use of the Taser on a fourteen-year-old girl during an arrest, as well as Officer Ammary's decision to shoot the Taser where he did, are evidence that the force used was " excessive." The use of excessive force during an arrest is a cognizable constitutional violation under the Fourth Amendment. Bell v. Wolfish, 441 U.S. 520, 534 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The Fourth Amendment provides, " The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated." [25] An arresting officer is justified in using " substantial force" as part of the arrest when the person is convicted of the crime. Nelson v. Jashurek, 109 F.3d 142, 146 (3d Cir. 1997). The use of force beyond substantial force during the arrest goes to the question of whether the seizure of the person itself was reasonable. See Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004).

Reasonableness is evaluated from the perspective of a reasonable officer on the scene. Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir. 2004)(citing Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Not every push or shove amounts to unreasonableness even if found to be unnecessary later.[26] Id. The reasonableness inquiry must recognize that " police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving..." Id. at 396-97. The inquiry is objective and does not take into account the officer's subjective bad faith or ill-will. Id. at 399.

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" [R]easonableness under the Fourth Amendment should frequently remain a question for the jury." Abraham v. Raso, 183 F.3d 279, 290 (3d Cir.1999). Summary judgment may be possible, however, if the officer's use of force was objectively reasonable under the circumstances after all factual disputes have been resolved in favor of the plaintiff. Id. The use of a Taser during an arrest, especially when the suspect is resisting arrest, may be reasonable. See Brown v. Cwynar, 484 F.App'x 676, 681 (3d Cir. 2012)(noting how the use of Taser on a suspect resisting arrest is not inherently " excessive force" ).[27] Nonetheless, " the deployment of a taser ... remains a relatively serious use of force." Ickes v. Borough of Bedford, 807 F.Supp.2d 306, 323 (W.D. Pa. 2011).

How much force is reasonable in effectuating an arrest is based on the " totality of the circumstances," including: 1) the severity of the crime at issue, 2) the immediate threat to the safety of the officers or others that the suspect poses, 3) whether the suspect is resisting or evading arrest, 4) how " violent or dangerous" the suspect is, 5) the " duration" of the force, 6) whether the force was used in making an arrest, and 7) whether the suspect might be armed, and 8) the number of people with whom the police must contend. Graham, 490 U.S. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1, (1985)); Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.1997).

i. Collateral Estoppel Via Ms. Wilson's Adjudication

The defendant argues that the plaintiff is estopped from arguing that Officer Ammary acted improperly in his initial contact with Ms. Wilson because she was adjudicated delinquent on the charges of disorderly conduct, ...


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