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Ford v. Derbish

United States District Court, W.D. Pennsylvania

December 12, 2017

LEON D. FORD, Plaintiff,
v.
POLICE OFFICER DAVID DERBISH Defendant. POLICE OFFICER DAVID DERBISH, Cross-Claim Plaintiff,
v.
CITY OF PITTSBURGH, Cross-Claim Defendant.

          MEMORANDUM ORDER

          MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.

         Presently before the Court is a Renewed Motion for Judgment as a Matter of Law Pursuant to Rule 50(b) ("the Motion") filed by Defendant David Derbish ("Defendant") and a Brief in Support. ECF Nos. 499-500. Also before the Court is a Response and Brief in Opposition filed by Plaintiff Leon D. Ford ("Plaintiff). ECF Nos. 507-508. Defendant's Motion follows the October 10, 2017, conclusion of a trial at which the jury failed to reach a verdict as to Defendant's liability. ECF No. 493. A second trial is scheduled to begin on January 22, 2018. ECF No. 498.

         A motion pursuant to Federal Rule of Civil Procedure 50(b) "should be granted only if, as a matter of law, the record is critically deficient of that minimum quantity of evidence from which a jury might reasonably afford relief. In reviewing the record, we must view the evidence in the light most favorable to the nonmovant ... and must give the nonmovant the advantage of every fair and reasonable inference." Roberts Tech. Grp., Inc. v. Curwood, Inc., 695 Fed.Appx. (3d Cir. 2017) (citations and quotation marks omitted).

         Defendant's Motion is based on an assertion of qualified immunity. ECF No. 499 ¶ 3. Defendant previously asserted the application of qualified immunity in a pre-trial Motion for Summary Judgment, ECF No. 180, and in a Motion for Judgment as a Matter of Law pursuant to Rule 50(a) following the close of Plaintiffs case in chief at trial. ECF No. 477. Both of those motions were denied as to the issue of qualified immunity. ECF Nos. 206-207 and 479.

         In disposing of the relevant Motion for Summary Judgment, this Court held:

Qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The United States Supreme Court has set forth a two-step objective reasonableness test to determine whether qualified immunity should be granted. Saucier v. Katz, 533 U.S. 194, 200-01 (2001); see also Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004). "First, the court must consider whether the facts alleged, taken in the light most favorable to the plaintiff, show that the officer's conduct violated a constitutional right." Kopec, 361 F.3d at 776 (citing Saucier, 533 U.S. at 201). If'"a violation could be made out on a favorable view of the parties' submissions, " the court must determine '"whether the right was clearly established.'" Id. (quoting Saucier, 533 U.S. at 201). '"The relevant dispositive inquiry' in making this determination is 'whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Id. (quoting Saucier, 533 U.S. at 202).
In this case, the Officers' argument for qualified immunity purports to be based on facts as seen in the light most favorable to Plaintiff. ECF No. 181 at 9. It is not. A thorough review of the summary judgment filings by the Officers reveals that their argument for qualified immunity is based on disputed facts, e.g., the uncertainty over Plaintiffs identity, the observance of a bulge in Plaintiffs sweatpants and other critical facts, viewed in the light least favorable to Plaintiff. Id.
Viewing the facts in the light most favorable to Plaintiff, as is proper to undergo the first step outlined above in Saucier, the Court finds that the jury could conclude that the Officers used excessive force [footnote omitted] against Plaintiff. The facts presented in the record do not clearly establish that every reasonable officer would have used the level of force employed by the Officers in the traffic stop, shooting and arrest of Plaintiff.
The second step outlined above requires a determination of "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted." Kopec, 361 F.3d at 776 (citing Saucier, 533 U.S. at 202). "In other words, there must be sufficient precedent at the time of action, factually similar to the plaintiffs allegations, to put defendant on notice that his or her conduct is constitutionally prohibited." Mammaro v. N.J. Div. of Child Prot. and Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (citing McLaughlin v. Watson. 271 F.3d 566, 572 (3d Cir. 2001)).
Here, the Officers claim that they are entitled to qualified immunity because the Officers "acted reasonably in response to the circumstances surrounding the incident." ECF No. 181 at 3. [footnote omitted] However, the Officers concede that "there is no case law notifying the Defendants that their actions would result in the violation of an individual's rights and putting such a notice beyond debate." Id. at 4. See also ECF No. 180 ¶ 5.
In this context, the United States Court of Appeals for the Third Circuit has interpreted the second factor 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 officers' 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 Ctv. 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 (3d Cir. 2007) (citing Sharrar v. Felsing, 128 F.3d 810, 826-28, 832 (3d Cir. 1997) (citation omitted)).
In the instant case, there are multiple facts material to the determination of reasonableness that remain in dispute, including, but not limited to: (1) the nature of Plaintiffs conduct resulting in the traffic stop; (2) whether Plaintiff posed any threat during the traffic stop; (3) why the Officers continued to detain Plaintiff after his identity was confirmed; (4) whether there was a bulge in Plaintiffs pants; (5) why Defendant Derbish climbed into Plaintiffs vehicle in violation of the Pittsburgh Bureau of Police General Orders; and (6) what caused Plaintiffs vehicle to move forward. These disputes should be resolved by a jury, not the Court.
Because resolution of these issues implicates "disputes over facts that might affect the outcome of the suit under the governing law, " Anderson [v. Liberty Lobby. Inc.]. 477 U.S. [242] at 248 [(1986)], the entry of summary judgment on qualified immunity is not appropriate at this time.ffn] As such, the Officers are not entitled to summary judgment as a matter of law on this issue.
[fn] See Barnes v. Edwards. Civ. A. 13-4239, 2016 U.S. Dist. LEXIS 82343, at *5 (D.N.J. June 24, 2016) (denying summary judgment on qualified immunity because factual disputes remained regarding reasonableness of defendants' conduct during arrest); Garev v. Borough of Quakertown. Civ. A. No. 12-799, 2013 U.S Dist. LEXIS 91798, at *15-16 (E.D. Pa. Jul. 1, 2013) (denying summary judgment on qualified immunity defense because factual disputes about reasonableness of officer's conduct remained); Shultz v. Carlisle Police Dep't. 706 F.Supp.2d 613, 624 (M.D. Pa. 2010) (denying summary judgment on qualified immunity because factual disputes remained about whether a reasonable officer would have acted the same way); Wilhere v. Delaware Cntv.. Civ. A. No. 09-22, 2010 U.S. Dist. LEXIS 31896, at *20-21 (E.D. Pa. Apr. 1, 2010) (denying summary judgment on qualified immunity defense because factual disputes remained ...

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