United States District Court, W.D. Pennsylvania
LEON D. FORD, Plaintiff,
POLICE OFFICER DAVID DERBISH Defendant. POLICE OFFICER DAVID DERBISH, Cross-Claim Plaintiff,
CITY OF PITTSBURGH, Cross-Claim Defendant.
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.
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.
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).
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.
disposing of the relevant Motion for Summary Judgment, this
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.  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
[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 ...