Rush v. City of Phila.

78 F.4th 610

Brad RUSH, As Administrator of the Estate of Jeffrey Dennis, Deceased. v. CITY OF PHILADELPHIA; Officer Richard Nicoletti,In his individual and official capacity, Officer Richard Nicoletti, Appellant

No. 21-1298

United States Court of Appeals, Third Circuit

Argued March 13, 2023

Opinion filed: August 30, 2023

On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No.: 2-19-cv-00932), District Judge: Honorable Joshua D. Wolson

Shane Haselbarth [ARGUED], Marshall Dennehey Warner Coleman & Goggin, 2000 Market Street, Suite 2300, Philadelphia, PA 19103, Counsel for Appellant Officer Richard Nicoletti

James P. Davy [ARGUED], All Rise Trial & Appellate, 1602 Frankford Ave.,

P.O. Box 15216, Philadelphia, PA 19125, John J. Coyle, McEldrew Purtell, 123 South Broad Street, Suite 2250, Philadelphia, PA 19109, Counsel for Appellee Brad Rush

Craig R. Gottlieb, City of Philadelphia Law Department, 1515 Arch Street, 17th Floor, Philadelphia, PA 19102, Counsel for Appellee City of Philadelphia

Before RESTREPO, AMBRO, and FUENTES, Circuit Judges

OPINION OF THE COURT

RESTREPO, Circuit Judge

As a reviewing court, we must often avoid the temptation to delve into factual inquiries that are beyond our ken. Our jurisdictional rules require us to exercise such restraint in reviewing this interlocutory appeal, taken from the denial of qualified immunity to a Philadelphia Police officer who fatally shot an unarmed driver suspected of criminal activity in August 2018.

During execution of a warrant, six plainclothes officers in unmarked police cars surrounded Mr. Jeffrey Dennis's vehicle at an intersection in West Philadelphia. Over the course of 48 seconds, Mr. Dennis attempted to free his car, bumping into the surrounding police vehicles. At one point, Mr. Dennis's car appeared to have stopped moving, and Officer Richard Nicoletti shot Mr. Dennis three times through the driver's side window. Mr. Dennis died at the scene.

Although the incident was captured on video by a security camera, the District Court on summary judgment found open questions of fact as to Mr. Dennis's estate's excessive force claims against the City of Philadelphia (the "City") and Officer Nicoletti; most notably, regarding whether Mr. Dennis posed a threat to the officers or public safety. The Court viewed the facts in the light most favorable to Mr. Dennis and denied Officer Nicoletti qualified immunity. It held that officer conduct including "sho[oting] at an unarmed driver attempting to escape at slow speed who had hit a car," and/or "using deadly force against an individual driving a car" when "the driver did not pose a threat to the safety of the officer or others," violated clearly established law.

The thrust of Officer Nicoletti's challenge to that determination is unmistakably factual, premised on a disagreement with the District Court's ruling that a reasonable jury could conclude that Mr. Dennis posed no threat to officer or pedestrian safety. However, this is an interlocutory appeal of a denial of qualified immunity and our jurisdiction is constrained to the review of legal questions only. To the extent that any of Officer Nicoletti's arguments could be construed to articulate a legal challenge to the District Court's holding that his conduct violated clearly established law, we will affirm that holding.

I. BACKGROUND

A. Relevant Facts

In August 2018, Philadelphia Police obtained a search warrant for the house where Mr. Dennis resided, suspecting that the house was being used for drug activity. On August 20, several officers, including Officer Nicoletti, visited Mr. Dennis's house to execute the warrant, but he was not home. Officers performing the surveillance—Nicoletti, Bogan, Fitzgerald, Galazka, Sumpter, Sergeant Shuck, and Lieutenant Muldoon (the "Officers")—were in plain clothes "to maintain an advantage" while on the scene. App. at 33. They spotted Mr. Dennis driving near his house and decided to stop his car. The description of what happened next is primarily based on the District Court's recitation of the facts, supplemented by a video of the incident that was captured by a nearby surveillance camera, and is viewed in the light most favorable to Mr. Dennis. The video reflects the following:

1. Initiation of the Stop

While Mr. Dennis's vehicle is stopped at a red light at an intersection on a narrow one-way street,¹ an unmarked police car pulls up travelling the wrong way and blocks Mr. Dennis's path from the front. As the District Court noted, there were not "any civilian cars or pedestrians in the immediate vicinity." App. at 14.²

Once blocked in from the front, Mr. Dennis reverses his car. However, officers had also blocked him in with another unmarked police car from behind. The front police car then advances to close him in even more tightly. Although he has been left very little space within which to maneuver, Mr. Dennis moves his car forward and back, attempting to free it, and bumps at slow speed between the unmarked police cars in front and behind him several times in the process.

Six of the Officers—Nicoletti, Bogan, Fitzgerald, Galazka, Sumpter, and Sergeant Shuck—emerge from the surrounding unmarked cars and approach Mr. Dennis's vehicle quickly, most with guns drawn. These officers are not in uniform.³ Mr. Dennis again moves his car forward, and collides slowly with the police car in front of him. Mr. Dennis's vehicle does not move for approximately fifteen seconds, during which time the Officers have their weapons pointed at him. Officer Fitzgerald appears to try to open the driver's side door. The Officers look from the video to be speaking to Mr. Dennis during this time, though the video has no sound.

Officer Galazka then runs over and smashes Mr. Dennis's driver's side window with a metal tool. After the window is broken, Mr. Dennis begins moving again, haltingly; he turns his vehicle to the right, in an attempt to creep over the curb and flee in that direction. Officer Bogan, who was situated on the passenger side of Mr. Dennis's vehicle, testified that at this point he saw Mr. Dennis reach to his right side near the center console. While Officer Bogan testified that he "could not see [Dennis's] hand," he alerted the other Officers that Mr. Dennis was "reaching." App. at 173. None of this is clearly visible from the video. Mr. Dennis maneuvers his car further to the right, and Officer Bogan, who was standing on the sidewalk, steps directly into its path.⁴ Mr. Dennis advances the car forward slowly, and Officer Bogan immediately steps out of the way.

2. Officer Fitzgerald Tries to Grab the Keys

Officer Fitzgerald then reaches into the broken driver's side window to try to grab the keys out of the ignition.⁵ Mr. Dennis reverses his vehicle while Officer Fitzgerald's arm is still in it. Officer Fitzgerald does not remove his arm from the window, and appears to be pulled along with the car as it moves slowly forward once and backward once, though he remains on his feet throughout. As the District Court noted, it is difficult to tell from the video whether Officer Fitzgerald was at any point "pinned" between Mr. Dennis's vehicle and the front police car, as Officer Nicoletti claims.⁶ App. at 7. Officer Fitzgerald jogs away after he abandons his attempt to grab the keys and stands over to the side away from the action, looking winded.

Mr. Dennis backs his car up once more, appearing to be lining it up to escape to the left. Officer Bogan, who was previously standing in the vehicle's way, holsters his weapon as Mr. Dennis's car turns away from him. Mr. Dennis accelerates forward, with slightly more speed than in prior attempts to elude the Officers. However, the driver of the front police car simultaneously accelerates towards him in an attempt to block him, and the cars collide with some force. Both cars shake from the impact; the dislodged front bumper of Mr. Dennis's car—which looks to have been previously damaged when he drove over the curb—flaps from hitting the front car. Mr. Dennis's vehicle comes to a complete stop; it is abutting the front police car nearly head-on and it does not appear from the video that it could advance further forward.

3. Officer Nicoletti Discharges His Weapon

Officers Fitzgerald and Bogan begin to approach Mr. Dennis's vehicle, weapons down, as it has stopped moving and appears fully stuck. As they are doing so, Officer Nicoletti, standing directly adjacent to the driver's side window, discharges his weapon three times through the side window at Mr. Dennis. The District Court found that Officer Nicoletti shot two seconds after the cars collided, that Mr. Dennis's car "was pointed away from any of the officers on foot," and that no other officers had their guns drawn at the time.⁷ App. at 8. Mr. Dennis was pronounced dead at the scene, and no weapon was recovered from his vehicle.

B. Procedural History

Plaintiff-Appellee Brad Rush, on behalf of Mr. Dennis's estate, brought claims in state court against Officer Nicoletti—in both his official and individual capacities—for excessive force under 42 U.S.C. § 1983, against the City under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), as well as state law assault and battery claims. Officer Nicoletti subsequently removed to the Eastern District of Pennsylvania. Both Defendants sought summary judgment after discovery, which the District Court rejected on all counts, except for the official capacity claim against Officer Nicoletti. Officer Nicoletti's timely appeal challenging the denial of his qualified immunity claim followed.⁸ The City did not submit its own briefs, and merely concurred with those of Officer Nicoletti.

II. JURISDICTION

Subject matter jurisdiction in the District Court was proper under 28 U.S.C. §§ 1331 and 1343(a)(3).

This Court's jurisdiction to hear Officer Nicoletti's appeal is a more complicated affair, as it "depends on whether we may...