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Davenport v. Borough of Homestead

United States Court of Appeals, Third Circuit

August 29, 2017

LENA DAVENPORT, an adult individual
v.
BOROUGH OF HOMESTEAD, a Municipal Corporation; CITY OF PITTSBURGH, a Municipal corporation; IAN STRANG, individually and in his official capacities as a Police Officer of the Borough of Homestead; JAMES ILGENFRITZ, individually and his official capacities as a Police Officer of the Borough of Homestead; LOUIS SCHWEITZER, individually and in his official capacities as a Police Officer of the City of Pittsburgh; STEPHEN MATAKOVICH, individually and in his official capacities as a Police Officer of the City of Pittsburgh; CALVIN KENNEDY, individually and in his official capacities as a Police Officer of the City of Pittsburgh; THOMAS GORECKI, individually and in his official capacities as a Police Officer of the City of Pittsburgh, and; NATHAN HARPER, Commander, in his official capacity as a Chief of Police of the City of Pittsburgh; JEFFREY DESIMONE, in his official capacity as Chief of Police of Borough of Homestead, and; IGOR BOYKO, individually and in his official capacity of a Police Officer of the City of Pittsburgh Louis Schweitzer; Stephen Matakovich; Calvin Kennedy; Thomas Gorecki, Appellants

          Argued: May 24, 2017

         On 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.

          Bryan 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

          J. Kerrington Lewis, Sr. [ARGUED] Lewis Lewis & Reilly Counsel for Appellee

          Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.

          OPINION

          FISHER, Circuit Judge.

         On an 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.

         I

         At 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.

         Despite 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.

         As 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.

         Near 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 pedestrian's back.

         Between 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.

         As the 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 ...


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