Argued: May 24, 2017
Appeal from the United States District Court for the Western
District of Pennsylvania (W.D. Pa. No. 2-13-cv-00250)
Honorable David S. Cercone, District Judge.
Campbell Law Offices of Bryan Campbell, Allison N. Genard
Marshall Dennehey Warner Coleman & Goggin John J. Hare
Shane Haselbarth [ARGUED] Marshall Dennehey Warner Coleman
& Goggin Counsel for Appellants
Kerrington Lewis, Sr. [ARGUED] Lewis Lewis & Reilly
Counsel for Appellee
Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.
FISHER, Circuit Judge.
early Sunday morning in January 2013, Lena Davenport was
riding in the front passenger seat of a vehicle driven by her
son Donald Burris, Jr. After running a red light and refusing
to pull over, Burris led police officers on a nearly
five-mile low speed pursuit into the City of Pittsburgh. As
the pursuit entered an area with high pedestrian traffic,
City of Pittsburgh Police Officers Louis Schweitzer, Stephen
Matakovich, Calvin Kennedy, and Thomas Gorecki each opened
fire on Burris's vehicle. Davenport was struck by one of
the officers' bullets. She filed this suit under 42
U.S.C. § 1983 against the officers and others alleging,
inter alia, that the officers used excessive force
in violation of both the Fourth Amendment and the Fourteenth
Amendment's Due Process Clause. The District Court
granted summary judgment on the basis of qualified immunity
in favor of many of the defendants but denied it as to
Schweitzer, Matakovich, Kennedy, and Gorecki, finding that
their alleged conduct violated clearly established law. We
will dismiss the appeal in part as to Gorecki and reverse in
part as to Schweitzer, Matakovich, and Kennedy.
about 1:38 a.m. on Sunday, January 13, 2013, Donald Burris,
Jr. ran a red light in Homestead, Pennsylvania. Burris's
mother, Lena Davenport, was the only passenger in his car.
When a Homestead police officer attempted to stop the car,
Burris did not comply. Instead, a pursuit began, heading into
the City of Pittsburgh. As Burris entered Pittsburgh's
South Side neighborhood on East Carson Street, several
Pittsburgh police officers joined the pursuit. About 1:42
a.m., as the pursuit reached a busy area, the Sergeant of the
Pittsburgh Police Department called it off.
the Sergeant's orders, officers deployed spike-strips
near the intersection of East Carson Street and 24th Street.
It is undisputed that until reaching the 24th Street
intersection, the pursuit did not jeopardize the safety of
other motorists or pedestrians. However, in an attempt to
avoid the spike-strips, Burris swerved between East Carson
Street's inbound and outbound lanes.
these events transpired, Officers Schweitzer, Matakovich,
Kennedy, and Gorecki were working approved off-duty security
jobs at bars on East Carson Street. They heard about the
pursuit through police radio communications.
the 17th Street intersection, Schweitzer was the first to
shoot at Burris's car, opening fire after observing the
vehicle swerve between lanes of traffic and drive toward him.
He fired at the front of the vehicle three times and once
more at the vehicle's rear as it passed his position. At
some point near this intersection, a bullet grazed a
the 16th and 15th Street intersections, after attempting to
clear the street of pedestrians, Matakovich looked up and saw
Burris's car heading toward him from the opposite lane.
He shot at the vehicle four times and claims he jumped out of
the way to avoid being struck. Kennedy, who was standing near
Matakovich, fired once at the vehicle. Burris again swerved
between lanes and, upon reaching the 15th Street
intersection, side-swiped a parked car.
pursuit approached the 14th Street intersection, Burris
continued to swerve, hitting a car in the outbound lane and
then returning to the inbound lane. Near the 13th Street
intersection, at about 1:44 a.m., the pursuit ended when
Burris collided with a taxicab. At or around the same time,
Gorecki fired two shots directly into the driver compartment
of the vehicle. The parties dispute whether Gorecki fired
before or after the final collision. The taxicab's
dash-camera footage shows Gorecki's conduct, but it is
not clear from the video when he actually discharged his
firearm. Minutes later, at 1:47 a.m, paramedics arrived. They
found Davenport on the ...