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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,
JASON AMMARY, ET AL., Defendants

Decided August 21, 2014.

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[Copyrighted Material Omitted]

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

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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.


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.


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).


" 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, failure to disperse, and resisting arrest.[28] In Pennsylvania,

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" summary judgment may be granted in a civil proceeding based upon a guilty plea in a criminal case if the operative facts in the criminal case are identical to those that would be litigated in the civil case." Linnen v. Armainis, 991 F.2d 1102, 1105 (3d Cir.1993)(discussing Commonwealth Dep't of Transp. v. Mitchell, 517 Pa. 203, 535 A.2d 581, 585 (Pa. 1987)). The same is true under federal law. See Haring v. Prosise, 462 U.S. 306, 316-317, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983)(holding that a guilty plea entered in a state criminal proceeding would not bar a subsequent § 1983 action when the later case addressed issues neither actually litigated nor necessary to support the judgment). " Reasonable doubt as to what was decided by a prior judgment should be resolved against using it as an estoppel." Gregory v. Chehi, 843 F.2d 111, 121 (3d Cir.1988) (quoting Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir. 1970)).

The record does not offer the facts on which the juvenile court relied to make its decision. In adjudicating Ms. Wilson, the juvenile court entered an Order without much explanation of its factual or legal findings.[29] For this reason alone, I am disinclined to prevent the plaintiff from using facts about the initial contact with Officer Ammary's conduct.[30]

In addition, a conviction for resisting arrest does not necessarily preclude an arrestee from recovering damages on a § 1983 excessive force claim. See Nelson v. Jashurek, 109 F.3d 142, 145-46 (3d Cir. 1997); Domitrovich v. Monaca, No. 2:08cv1094, 2010 WL 3489137, at *7 (W.D. Pa. Sept. 1, 2010)(finding that conviction foreclosed false arrest and malicious prosecution claims but not excessive force claim). Even if a suspect had been combative at the time of arrest, an excessive force claim would not necessarily be precluded. See Garrison v. Porch, 376 F.App'x 274, 278 (3d Cir. 2010)(" A reasonable jury could find that, even considering Garrison's initial behavior which constituted a simple assault, Porch used an unreasonable amount of force in arresting him, and in doing so violated his constitutional rights." ).[31] The basis for Ms. Wilson's arrest is separate from the manner in which Officer Ammary carried out the arrest. This is why I previously dismissed the false arrest claim but allowed the excessive force claim to go forward.[32]

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The plaintiff is not estopped from presenting evidence regarding Officer Ammary's conduct during the initial stop nor from arguing that this conduct constituted excessive force.[33] However, she cannot argue that her arrest was unwarranted or invalid and cannot collaterally attack her adjudication. I have not found her arguments pertaining to this motion to attack the validity of her actual arrest but instead to challenge the manner by which Officer Ammary arrested her.

ii. Video Evidence Does Not Resolve Factual Disputes

The surveillance video showing Ms. Wilson's tasing has been submitted to the court as part of this motion. Both parties point to video of the Mr. Wilson's arrest as being dispositive of facts in this case. The surveillance camera taping the incident, however, only captured part of the arrest. It had panned to another area of the high school grounds during the initial contact between Mr. Wilson and Officer Ammary and returned to the location of the incident when they were halfway through their encounter. The video shows the two struggling against a parked car and then Officer Ammary pulling away. He then tasered Ms. Wilson. This is captured on video. The video continued to focus on the scene until just after Ms. Wilson was taken away in an ambulance.

Because the video only captures part of the incident, it does not resolve one way or the other facts being disputed regarding the excessive force claim. The events leading to the struggle against the parked car are important to the excessive force analysis because they help show the context of the arrest. The context of the arrest--how many students were present during the initial contact between Ms. Wilson and Officer Ammary, whether Ms. Wilson's behavior in responding to Officer Ammary's request to " move along" threatened his safety or that of those around her, and what other events were happening during their initial contact--is important to the excessive force claim. As I found in deciding the motion to dismiss, the video evidence does not necessarily resolve the facts that remain in dispute.

iii. Outstanding Material Factual Disputes

Several facts in dispute are material to the excessive force analysis.[34] First, the plaintiff and defendant offer differing accounts of what was happening on school grounds when Officer Ammary initially made contact with Ms. Wilson. Officer Ammary claims that there were large groups of students gathering on school grounds near where he approached Ms. Wilson.[35] He claims that these students

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appeared to be ready to fight.[36] Ms. Wilson, however, recounts that school dismissal as being a little louder than usual but not " too much out of the ordinary." [37] She did not see any large groups gathering nor knew of students planning to fight.[38] These facts speak to the possible threat of safety to the officer and others at the time of the arrest, along with the number of people with which Officer Ammary would need to contend.[39]

Second, the plaintiff's account of her behavior during her struggle with Officer Ammary differs from that of Officer Ammary's recounting of this struggle.[40] Ms.

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Wilson claims that she was pushing Officer Ammary's arm off of her chest because she was unable to breathe.[41] Officer Ammary, however, indicates that her actions were simply ones of defiance. He claims she struck him several times, including in the face.[42] Ms. Wilson denies striking him or at least doing so intentionally.[43] The video does show part of the struggle between them. However, this graphic depiction could be viewed either way. Essentially, this fact comes down to the credibility of Ms. Wilson and Officer Ammary. Which account is more accurate would be a question for a jury to answer. These facts are important to determining whether a threat of safety was posed to Officer Ammary, how dangerous Ms. Wilson appeared to be, and whether these actions are what Officer Ammary viewed as her resisting arrest.[44]

Third, it is disputed what types of warnings were given to Ms. Wilson before force was applied by Officer Ammary and whether Ms. Wilson was actively resisting these commands at the time she was tased. Whether warnings were given prior to tasing is important to showing whether this use of force was appropriate. See Brown v. Cwynar, 484 F.App'x 676 (3d Cir. Jun. 7, 2012)(use of a Taser on plaintiff during arrest not excessive force after officer was called to store to deal with a " disruptive customer" and plaintiff/customer was non-complaint after several requests by officer to stop); Ickes v. Borough of Bedford, 807 F.Supp.2d 306, 313, 324 (W.D. Pa. 2011)

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(finding that arresting officer's tasering of a handicapped individual was appropriate after the plaintiff was warned that he might be tasered and the plaintiff responded, " Go ahead and taser me." ).[45]

Officer Ammary claims he gave several orders to disperse to Ms. Wilson and then gave her warnings to cease her behavior.[46] Ms. Wilson claims no such warnings were given.[47] If they were, she was unable to hear them.[48] Ms. Wilson also testified that she stopped resisting after Officer Ammary let her go from his hold.[49] She claims she put her hands up when Officer Ammary stepped away from her. [50] Officer

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Ammary claims she did not have her hands up until he tasered her.[51] Whether Ms. Wilson did comply or not with Officer Ammary's orders and was actively resisting arrest at the time she was tased are factual questions which speak directly to the Graham and Sharrer factors.

Fourth, Ms. Wilson and Officer Ammary offer different accounts of how Ms. Wilson was treated after the tasing. Ms. Wilson claims she was ordered to roll onto her stomach so that she could be handcuffed, further pushing the Taser barbs into her stomach and groin.[52] Officer Ammary claims she remained on her side.[53] The video does not have sound, so it is unclear what was said to Ms. Wilson. Another person also blocked the view of Ms. Wilson being handcuffed so it is unclear how that event transpired. She is at one point seen on her stomach, but it is unclear whether she rolled into this position by her own volition or whether she was ordered to do so. If she was ordered to roll on her stomach and remain in this position, a reasonable jury could conclude that this order was force beyond what was needed.[54]

Lastly, the parties dispute where Ms. Wilson's messenger bag was placed at the time she was tased. This fact is important to understanding whether Officer Ammary's tasing Ms. Wilson in her groin was " excessive" under the circumstances. Officer Ammary claims her messenger bag was in front of her, making it difficult for him to aim the Taser higher on her body.[55] Ms. Wilson claims that the bag was on her back and that Officer Ammary had no obstruction in aiming higher on her body.[56]

Given that several material facts are genuinely disputed, summary judgment would not be appropriate as to the plaintiff's excessive force claim.[57]

iv. Qualified Immunity

Even if material facts remain in dispute, the defendants argue that the excessive force claim against Officer Ammary should be barred based on the doctrine of qualified immunity. Qualified immunity is intended to shield government

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officials performing discretionary functions, including police officers, " from liability from civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." [58] Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A defendant has the burden to establish that he is entitled to qualified immunity. See Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n. 15 (3d Cir. 2001).

Typically, the issue of qualified immunity should be decided early in the litigation. " Because qualified immunity is 'an immunity from suit rather than a mere defense to liability ... it is effectively lost if a case is erroneously permitted to go to trial.'" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)(quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis and quotation marks omitted)). However, " 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). The Third Circuit has made clear that " a qualified immunity determination must be made in light of the specific factual context of the case." Thomas v. Independence Township, 463 F.3d 285, 289 (3d Cir. 2006). Qualified immunity, however, may be raised again as a defense after the disputed issues of fact are resolved.[59]

A ruling on qualified immunity requires a two-factor inquiry: 1) a court must consider whether the facts alleged show that the officer's conduct violated a constitutional right when viewed in the light most favorable to the plaintiff; and 2) a court must determine that that right was clearly established. Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004)(citing Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

Viewing the facts in the light most favorable to the plaintiff, a jury could conclude that Officer Ammary used excessive force when arresting Ms. Wilson.[60] The

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facts presented in the record thus far also do not clearly establish that every reasonable officer would have used the level of force employed by Officer Ammary in making the arrest of Ms. Wilson, a minor.[61]

The second factor requires a determination of " whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Kopec, 361 F.3d at 776 (quoting Saucier, 533 U.S. at 202)(quotation marks omitted).[62] The defendants claim that qualified immunity is appropriate because Officer Ammary could not have known that the use of a taser device against an assaultive suspect, who had struck him in the face, would be a violation of Ms. Wilson's rights. This inquiry, however, would not be whether the use of a Taser on a combative person was appropriate but whether the use of a Taser on a combative minor was appropriate. No case law cited by the parties speaks directly to this issue, and I have not found case law in this Circuit that is directly on point.[63]

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The Third Circuit has interpreted the second inquiry broadly. Kopec, 361 F.3d at 778 (quoting Burns v. County of Cambria, 971 F.2d 1015, 1024 (3d Cir. 1992). If no case directly speaks to the legality of the officer's conduct, the challenged conduct would need to be such that " reasonable officers in the defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct was lawful." Giuffre v. Bissell, 31 F.3d 1241, 1255 (3d Cir. 1994) (quoting Good v. Dauphin Cty. Social Servs. for Children & Youth, 891 F.2d 1087, 1092 (3d Cir.1989)). " Reasonableness under the second factor [of the qualified immunity analysis] is an issue of law for the district court to determine; however, if there are facts material to the determination of reasonableness in dispute, then that issue of fact should be decided by the jury." Barton v. Curtis, 497 F.3d 331, 335, 49 V.I. 1125 (3d Cir. 2007)(citing Sharrar v. Felsing, 128 F.3d 810, 826-28, 832 (3d Cir.1997) (citation omitted)). Several facts material to the determination of reasonableness remain in dispute.[64] These disputes should be resolved by a jury, not the court.

For these reasons, a decision of whether Officer Ammary is entitled to qualified immunity would not be appropriate at this time.[65] The defendants may raise qualified

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immunity as a defense after the disputed issues of fact are resolved.

b. Claims Against the City of Allentown[66]

" [A] municipality cannot be held liable solely because it employs a tortfeasor--or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)(emphasis in original). Instead, " it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694. The plaintiff asserts that the City Allentown is liable because it failed properly to train its officers and because its Use of Force Policy was flawed. I will address each theory in turn.

i. Failure to Train Claims[67]

The plaintiff argues that the City of Allentown failed properly to train Officer Ammary in two ways: 1) failing to train him on the differences between ordinary police work and police work in an educational environment, and 2) failing to train him on the proper use of a Taser.[68] Under § 1983, " [a] municipality may be liable for failing to train its employees if that failure amounts to deliberate indifference" so long as this failure is closely related to the plaintiff's ultimate injuries. A.M. v. Luzerne Cty. Juvenile Detention Ctr., 372 F.3d 572, 582 (3d Cir.2004)(citing City of Canton v. Harris, 489 U.S. 378, 389-90, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).[69] This " deliberate indifference" satisfies the " policy or custom" element that would make a city liable under § 1983. Canton, 489 U.S. at 389.

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While this type of claim is typically shown through a pattern of constitutional violations, " [a] single constitutional violation can still provide the basis for municipal liability for failure to train, ... but only where the 'need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights' that the policymaker's inaction amounts to deliberate indifference." Christopher v. Nestlerode, 240 F.App'x 481, 489-90 (3d Cir. 2007) (quoting Canton, 489 U.S. at 391)(quotation marks omitted).[70] " [T]he unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of violations." Connick v. Thompson, 131 S.Ct. 1350, 1361, 179 L.Ed.2d 417 (discussing Bd. of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 409, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). One such example would be when a city arms its police with weapons and deploys police into the community to use those weapons on fleeing felons without training on the limits of deadly force. Id. (discussing Canton, 489 U.S. at 390 n. 10).

As I noted in my decision regarding the defendants' motion to dismiss, " the use of Tasers in the field is not dissimilar from Canton." Geist v. Ammary, No. 11-07532, 2012 WL 6762010, at *6 n. 19 (E.D. Pa. Dec. 20, 2012). Under this rationale, the need to train officers in how and when to use a taser gun to subdue a person during arrest could be " so obvious" and " highly predictable" such that a showing of repeated constitutional violations may be unnecessary. See Id. at *7.

" That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may have resulted from factors other than a faulty training program." Canton, 489 U.S. 378, 390-91, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). In determining whether a training program is adequate, a court must look to what tasks particular officers must perform. Canton, 489 U.S. at 390. The Third Circuit has outlined three elements a court should consider in determining whether a municipality's failure to train amounts to deliberate indifference: 1) whether municipal policymakers know that employees will confront a particular situation; 2) whether the situation involved a difficult choice or a history of employee mishandling; and 3) whether the wrong choice by an employee will frequently cause deprivation of constitutional rights. See Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999).[71]

1. Failure to Train as an Officer in an Educational Setting

The plaintiff argues that the need to train Officer Ammary as a School Resource Officer (SRO)--a police officer

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working in a school setting--was " so obvious" that a pattern of constitutional violations would not be necessary for the City to be liable under Monell.[72] Genuine disputes of material fact remain regarding whether the training provided to Officer Ammary and other SROs was adequate.

Testimony provided by Officer Ammary and Police Chief Hanna raise genuine questions about whether city policymakers knew that Officer Ammary and other SROs would consistently need to contend with large crowds of unruly teenagers. Police Chief Joseph Hanna testified during his deposition that seven SROs were placed in both high schools and middle schools in the Allentown area.[73] He recognized that these officers need special skills to work with juveniles.[74] Officer Ammary, too, admitted that juveniles behave differently than adults.[75] He testified that students were typically less compliant, requiring him to " escalate the commands" related to the use or threat of force.[76] Officer Ammary was the only police officer assigned to the high school.[77] He testified that " managing the student body, being there as a presence and as an assist to the administration and the security officers" was a part of his job as an SRO.[78] Half of his time was spent " dealing with students" while the other half was spent investigating crimes.[79] He explained that fights involving gangs or weapons were common occurrences at dismissal.[80] Officer Ammary would report information about these incidents to his supervisor.[81]

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Nonetheless, the only training Officer Ammary received when he became an SRO was to shadow another SRO.[82] Chief Hanna was aware of specialized training for officers through the National Association for School Resource Officers (NASRO).[83] NASRO provided a 40-hour course to SROs, which explained " the role of a school resource officer in the school setting, what some of the legal parameters are [of school resource officer conduct,] and what they can do and what they can't do." [84]

Allentown did not provide this training, however, before placing its officers in a school setting or at any time thereafter.[85] Officer Ammary testified that NASRO training had been discussed, but he was never afforded this training due to budgetary constraints.[86] The plaintiff's expert, however, found that the City of Allentown had a budget surplus of $666, 830.00 in 2011--the

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year Officer Ammary became an SRO at the high school level.[87] This evidence alone raises a genuine dispute over Officer Ammary's lack of training, which would be material to the analysis of whether the City was " deliberately indifferent" to potential constitutional violations.[88]

Evidence in the record also suggests a history of possible mishandling of students at dismissal which could amount to constitutional violations of students' rights. It was not uncommon for Officer Ammary and other officers to restrain certain students at dismissal simply to run background checks or ensure they didn't have outstanding warrants.[89] These actions served to " set[] the tone that police aren't messing around, that they mean business." [90] From these facts, a jury could find that it was foreseeable that a student could be injured during an arrest by a SRO who was inadequately trained in controlling crowds of teenagers and that the training that was offered to SROs was inadequate in these respects.[91]

2. Failure to Train on Proper Use of Tasers

The plaintiff also alleges that Allentown police officers were not properly trained in how to use Tasers because: 1) they were not properly trained on how to

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aim the Tasers, and 2) they were not trained to never aim the Taser at " sensitive" areas such as the groin.[92]

There is a genuine dispute of material fact as to whether the Allentown police department's training on how to aim the Taser was appropriate. Allentown police began using Tasers in July 2011, just before Ms. Wilson was tased.[93] Officer Ammary testified that he was trained to aim the laser at the quadrant of the person's body he hoped to hit.[94] Lieutenant Reinik, the Taser instructor for the Allentown Police Department, confirmed that this was the way Ammary and other officers were trained to use Tasers.[95] This training was consistent with what Officer Ammary testified he did when he tased Ms. Wilson, striking her in the groin. He pointed the Taser at her " lower torso" without using the lights.[96] The plaintiff's expert, however, indicated that officers can more accurately aim a Taser like the one used by Officer Ammary in order to better predict where the probes will hit. Lieutenant Reinik confirmed that police could better predict where the bottom probe might hit.[97] Yet, when he explained how he trained officers in aiming the Taser, it was not clear that this information regarding the bottom probe placement was relayed to officers.[98]

There is also a genuine dispute of material fact as to whether Officer Ammary was advised not to target sensitive areas, specifically the groin and back.[99] Lieutenant Reinik confirmed that he warned officers to avoid the heart and head but did not specifically warn officers to avoid the groin and back.[100] In fact, he instructed officers to deploy the Taser so that bottom probe hit " below the belt" and to aim for the " middle of the back." [101] Yet, he also

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testified that one of the training slides he gave officers told them not to " intentionally target genitals." [102] Officer Ammary testified that he was only warned not to aim for the face, head, throat, or heart.[103]

According to the plaintiff's expert, both of these practices contradict known risks about Tasers at the time the officers were trained.[104] TASER® warned that a probe hitting the genital area would cause serious injury.[105] The Allentown Police Department began using Tasers later than many other districts in the country.[106] Under these circumstances, a jury could find that the department should have known of the potential risks Tasers posed and that the City was " deliberately indifferent" to the risks improper training could pose.

This evidence by the plaintiff raises genuine issues of fact about whether the department's Taser training was adequate. A reasonable jury could find that had the training been adequate the injury to Ms. Wilson could have been avoided.[107]

ii. Defective Use of Force Policy

The plaintiff claims that the Allentown Police Department's Use of Force Policy was unclear and insufficiently offered officers guidance on when to use force and what level of force was appropriate.[108] Specifically, the policy does not explain what types of force are appropriate when officers are dealing with children and teenagers.[109] The plaintiff also attacks

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whether the defendants' policy on Taser usage is appropriate. This claim overlaps with the plaintiff's failure to train officers on the appropriate use of Tasers.

The Use of Force Policy states: " Department members shall use only the amount of force which is necessary and reasonable to control the situation, effect an arrest, overcome resistance to arrest, or defend themselves or others from harm. No officer will use unreasonable or excessive force toward any person." [110] It goes on to say: " officers shall use only that level of force on the force continuum that is reasonably necessary to de-escalate the incident and bring it under control." [111] The Policy indicates that the continuum of force moves from officer presence to verbal control to physical control to less lethal weapons to the use of a canine and then to deadly force.[112]

It goes further to say that " [w]hen the use of force is necessary, the degree of force that is employed should be in direct relationship to the amount of resistance employed by the person or the immediate threat the person poses to the officer or others." [113] The Use of Policy states that officer may use Tasers " against violent crowds, violent suspects not armed with firearms, mentally disturbed person[s] exhibiting aggressive behavior, and in support of tactical operations." [114]

The record raises questions of material fact about whether the Use of Policy or the Taser training adequately addressed when the use of a Taser was an appropriate use of force. Lieutenant Reinik agreed that the Taser training taught officers " how to use [the Taser] but not when" to use the Taser.[115] Lieutenant Reinik and Chief Hanna admit to relying almost entirely on TASER ® 's materials in preparing their training program.[116] Guidance put out by the Department of Justice warns against police departments relying heavily or solely on the materials provided

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by TASER ® , the manufacturer, in its training of officers.[117] The Department of Justice recommends that police departments incorporate their Taser training into use of force policies.[118]

From the record, there is a genuine dispute of material fact about whether the Allentown Police Department did integrate the Taser training into its use of policy adequately. It is unclear who developed the Department's Taser Policy and whether already known risks about Tasers were considered in crafting the policy.[119] Officer Hanna, the director of the police academy, testified that he " did not have any part in the creation or the development or authoring of [the Taser or use of force] policies." [120] Lieutenant Reinik also said he was not consulted when the policy was put into place.[121] In addition, Officer Ammary was trained on the Use of Force Policy, which supposedly discussed use of a Taser. This training, however, was offered six months before the police department was approved for the use of Tasers and six months before the Taser Policy was added to the Use of Force Policy.[122]

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Furthermore, there remains a question of whether the training materials and the Use of Force Policy provided officers with appropriate guidance on when the use of a Taser on a minor was appropriate. Lieutenant Reinik could not remember if the Taser training itself addressed when the use of a Taser on a minor was appropriate.[123] The training simply said " Avoid using on children" without much further explanation.[124] When asked about the Use of Force policy's guidance on juveniles, Officer Ammary testified that the officers' priority was not on " age or size." [125] Whether the use of a Taser on a child was appropriate was left to the discretion of the officer.[126] While the department's Taser training materials do advise officers not to use the Taser on " small children," this phrase is ambiguous and not well-defined. Officer Ammary himself indicated that he would not Taser a child of age eleven but thought tasing a fourteen-year-old was appropriate.[127] Why one was appropriate and not the other was unclear. Given that seven officers were placed in City schools with Tasers, the department's lack of guidance on what type of force may be used on children and teenagers and lack of guidance on when tasing juveniles was appropriate could amount to " deliberate indifference."

There also remains a genuine dispute of fact about whether the Use of Force Policy's lack of guidance on when to use a Taser encouraged officers to overuse Tasers as a tool of force.[128] The defendant's

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expert " found no evidence that [the Allentown Police Department] encouraged the use of [Conducted Electrical Weapons (a.k.a Tasers)] in all situations." [129] However, the Taser firing record for the Taser used in this incident offers a different picture. The Taser used in the incident with Ms. Wilson was fired close to 150 times between the officers' Taser training in July 2011 and the incident with Ms. Wilson at the end of September 2011.[130] Resolving all disputes in favor of the plaintiff, a jury could find that the Use of Force Policy as it related to Taser usage was inadequate in guiding officers on when it was appropriate to use the Taser as a tool of force.[131]

Evidence in the record also shows that supervisors in the Allentown Police Department were " deliberately indifferent" to the risks this lack of guidance posed.[132] The Use of Force Policy itself required the Assistant Chief of Police to review these incidents.[133] Whether this sort of review actually occurred is unclear.[134] Despite

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numerous incidents which had caused serious injuries to tased persons, the Police Department did not amend or revise the Policy to better guide the officers in the use of their Tasers.[135] For example, one suspect was hit in the back of the head by a Taser probe causing him to go into a seizure.[136] This lack of review and revision could be viewed as showing " deliberate indifference" on the part of the defendants, after all factual disputes are resolved in favor of the plaintiff. [137]

Resolving all of these disputes in favor of the plaintiff, a jury could find that the Police Department's Use of Force policy was deficient and that this deficiency caused Ms. Wilson's injury, making the City liable under Monell.


Genuine disputes of material fact remain on both the claim against Officer Ammary and the claim against the City of Allentown. For the reasons stated above, I will deny the defendants' motion for summary judgment.[138]

An appropriate Order follows.

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AND NOW, this 21st day of August, 2014, upon consideration of defendants' motion for summary judgment (Doc. No. 65) and all responses thereto, it is hereby ORDERED that the motion is DENIED, as explained in the accompanying memorandum.

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