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O'Donnell v. Tinicum Township

United States District Court, E.D. Pennsylvania

June 11, 2015




This case arises out of an incident in which Defendant, police officer Kevin W. Gaul, while attempting to arrest Plaintiff Brian O’Donnell, backed his police car into the motorcycle O’Donnell was riding, causing him injury. O’Donnell alleges that Gaul struck him intentionally. Gaul argues there is no evidence that that the contact was intentional. O’Donnell has asserted a Fourth Amendment claim against Gaul, individually, alleging Gaul used excessive force in arresting him. Gaul moves for summary judgment against that claim. He argues that the excessive force claim fails because he did not seize O’Donnell and because he is entitled to qualified immunity. For the reasons discussed below, the motion will be granted in part and denied in part.


The following facts are identified in the parties’ briefs as undisputed for the purposes of summary judgment. On the date of the incident in question, O’Donnell and his companions had transported two off-road motorcycles, referred to as dirt bikes, to an area of Hog Island Road, which runs between the Delaware River and the Philadelphia International Airport. Mot. at 2 ¶ 1; Opp. at 2 ¶ 1. They rode their motorcycles along dirt and rock trails along the railroad alongside the river. Mot. at 2 ¶¶ 2-3, 7; Opp. at 3 ¶¶ 2-3, 7. O’Donnell and his companions had been riding for about ninety minutes when they observed a police officer in his marked vehicle in a parking lot near the trail. Mot. at 2-3 ¶¶ 8-10; Opp’n at 3 ¶¶ 8-10. They started to head back the other way, and the officer did not stop them so they just kept going. Mot. at 3 ¶12; Opp’n at 3 ¶ 12. At the time they turned around, O’Donnell and his companions were fifty to one-hundred feet from the officer. Mot. at 3 ¶ 13; Opp’n at 3 ¶ 13. O’Donnell and his companions stayed in the woods for about thirty minutes and then saw another officer parked in his vehicle in a “cut through” area near the trial. He did not stop them, so they kept on going. Mot. at 3 ¶ 14; Opp’n at 3 ¶ 14. The officer did not have his flashing lights activated. Mot. at 3 ¶ 16; Opp’n at 3 ¶ 16. On a third occasion, O’Donnell and his companions came across yet another police officer, Defendant Gaul, in his vehicle in another cut through, but they weren’t aware of anyone chasing them. Mot. at 3 ¶ 17; Opp’n at 3 ¶ 17. As they rode past the officer, he put his vehicle into reverse and struck O’Donnell’s motorcycle. Mot. at 3 ¶ 17; Opp’n at 3 ¶ 17. O’Donnell was travelling between twenty-five and forty miles per hour at the moment of contact. Mot. at 4 ¶ 21; Opp’n at 3 ¶ 21. O’Donnell’s motorcycle was thrown inside the railroad tracks, its tires were punctured, and O’Donnell lost control of the bike and crashed. Mot. at 4 ¶ 22; Opp’n at 3 ¶ 22. Gaul then arrested O’Donnell at the scene of the crash. Mot. at ¶¶ 24-28; Opp’n ¶¶ 24-28. O’Donnell suffered a fractured knee cap and had a pin placed in one of his toes that had been dislocated. He also suffered a laceration to the knee and to his foot and head as well as a swollen elbow and thumb. Mot. at 6 ¶ 36; Opp’n at 4 ¶ 36. After the incident, O’Donnell received a citation and, ultimately, pleaded guilty to the citation. Mot. at 6 ¶ 37; Opp’n at 4 ¶ 37.


“[S]ummary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Alabama v. North Carolina, 560 U.S. 330, 345 (2010) (citations and internal quotation marks omitted). “The substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In ruling on a summary judgment motion, a court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing [summary judgment].’” Scott v. Harris, 550 U.S. 372, 378 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)) (alteration in original). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine, ’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248.


Gaul argues that he is entitled to summary judgment on two grounds.[1] First, he argues that he did not seize O’Donnell for Fourth Amendment purposes because the evidence shows he did not intend to strike O’Donnell’s motorcycle with his police car. Second, he argues that, even if there is sufficient evidence to create a question of fact as to his intent, he is entitled to qualified immunity because his conduct in bringing the chase to a stop was lawful or because he reasonably believed his conduct to be lawful when he committed it.

A. Whether Gaul Intentionally Seized O’Donnell

The Fourth Amendment to the Constitution protects citizens against unreasonable seizure. U.S. Const. amend. IV. “‘[W]henever an officer restrains the freedom of a person to walk away, he has seized the person.” Brower v. County of Inyo, 489 U.S. 593, 595 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 7 (1985)). A seizure occurs “when there is a governmental termination of freedom of movement through means intentionally applied.” County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998) (emphasis in original) (quoting Brower, 489 U.S. at 597). For a seizure to be unconstitutional, however, the officer must have made an “intentional acquisition of physical control” of the person. Brower, 489 U.S. at 586. Thus, the Supreme Court has explained that if a police officer pursues a suspect and attempts to stop him through “a show of authority represented by flashing lights” and the suspect crashes his vehicle, there has been no Fourth Amendment seizure, but that if the officer “pull[s] alongside the fleeing car and sideswipes it, producing the crash, then the termination of the suspect’s freedom of movement would have been a seizure.” Id. at 597.

Gaul’s deposition testimony is that he did not collide with O’Donnell’s motorcycle. Gaul Dep. at 41:10-42:8. O’Donnell’s testimony is that Gaul’s police car struck his motorcycle, causing him to crash. O’Donnell Dep. at 29:20-32:12. Gaul acknowledges that O’Donnell’s testimony differs from his but concedes that, for the purposes of summary judgment, the Court must view the facts in the light most favorable to the Plaintiff. Thus, the Court must assume for the purposes of this motion that the collision actually did occur. See Scott, 550 U.S. at 378. On that basis, assuming that Gaul struck O’Donnell’s motorcycle causing him to lose control and crash, a seizure occurred. See Id. at 381 (ramming fleeing automobile causing it to crash is a seizure); Brower, 489 U.S. at 598-99 (fleeing motorist who crashed into roadblock was seized).

Gaul argues, however, that, even if his cruiser did hit O’Donnell’s motorcycle, he did not unconstitutionally seize O’Donnell because he did not strike O’Donnell’s motorcycle intentionally. At oral argument O’Donnell relied on the following facts to create a genuine factual dispute over whether Gaul intended to seize O’Donnell by striking O’Donnell’s motorcycle with his police vehicle. First, he highlighted that, at the time of the collision, Gaul and his colleagues had already attempted to stop O’Donnell and his companions multiple times, but that the motorcyclists had escaped them each time.[2] Second, he pointed to O’Donnell’s testimony that Gaul backed up just as O’Donnell rode by at approximately thirty miles per hour. O’Donnell at 29:20-30:4. And third, he points to the incident report Gaul filed in which he stated “[t]his officer did attempt again to stop the bikes with my vehicle.” Opp’n Ex. 1 at 1.

The record contains evidence that supports these contentions. Taken in the light most favorable to O’Donnell, a reasonable fact-finder could infer the following. O’Donnell and his companions had escaped Gaul’s fellow officer’s pursuit by driving off a paved road and into an “off-road pipeline type area, ” where the officer’s car could not follow. Reply Ex. 1 at 10:1-13. When Gaul first attempted to stop O’Donnell and his companions, he parked his marked police car near the path and walked approximately ten to fifteen feet in their direction as he saw them coming out of the woods. Gaul Dep. at 18:4-14, 20:23-21:8. When O’Donnell and his companions saw Gaul, who was in uniform, they stopped, made a quick turnaround and headed back into the wooded area. Id. at 22:3-23:5. Gaul began jogging and then running after them, yelling “police.” Gaul Dep. at 22:12-23:5. He ran to within thirty to forty feet of the motorcyclists but was unable to catch them. Id. at 24:16-25:2.

Gaul returned to his vehicle, and sat there for well over one hour, waiting for O’Donnell and his friend to reappear. Id. at 25:11-26:9, 27:16-21. Meanwhile, other officers entered the woods on foot in an attempt to get the motorcycle riders to exit the woods towards where Gaul was parked. Id. at 20:16-21. When Gaul eventually observed O’Donnell and his friend coming out of the woods in his direction, he backed his vehicle up to within three feet of the railroad tracks so that it would be visible to them. Id. at 30:16-31:2. Gaul exited his vehicle and stood in the motorcyclists’ path. He unholstered his taser, and yelled at the motorcyclists to stop or he would tase them. Id. at 32:7-13, 34:21-35:14. O’Donnell and his companions did not ...

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