Geraldine Johnson v. City of Philadelphia , 837 F.3d 343 ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 15-2346
_______________
GERALDINE JOHNSON, as Admnistratrix of the Estate of
Kenyado D. Newsuan, Deceased Plaintiff,
Appellant
v.
CITY OF PHILADELPHIA, POLICE OFFICER THOMAS
DEMPSEY, Badge # 1577
_______________
On Appeal from the U.S. District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-14-cv-02331)
District Judge: Honorable William H. Yohn
_______________
Argued February 11, 2016
Before: FUENTES, KRAUSE, and ROTH, Circuit Judges
(Opinion Filed: September 20, 2016)
Armando A. Pandola, Jr., Esq. [ARGUED]
Alan E. Denenberg, Esq.
Abramson & Denenberg, P.C.
1315 Walnut St., 12th Floor
Philadelphia, PA 19107
Attorneys for Appellants
Craig R. Gottlieb, Esq. [ARGUED]
City of Philadelphia Law Department
17th Floor
1515 Arch Street
One Parkway
Philadelphia, PA 19102
Attorneys for Appellees
_______________
OPINION OF THE COURT
_______________
FUENTES, Circuit Judge:
Kenyado Newsuan was standing in the street, naked,
high on PCP, and yelling and flailing his arms. Philadelphia
police officer Thomas Dempsey arrived on the scene and,
without waiting for backup, ordered Newsuan to approach.
What happened next is a matter of some dispute, but what
happened at the end of the encounter is not: Newsuan
attacked Dempsey, slammed him into multiple cars, and tried
to remove Dempsey’s handgun. At that point, Dempsey shot
and killed Newsuan.
2
The administratrix of Newsuan’s estate sued Dempsey
and the City of Philadelphia under 42 U.S.C. § 1983 for using
unconstitutionally excessive force. The District Court
granted summary judgment to the defendants. On appeal,
Plaintiff argues that the shooting was unreasonable under the
Fourth Amendment because Dempsey unnecessarily initiated
a one-on-one confrontation with Newsuan that led to the
subsequent fatal altercation. Whatever the merits of that
liability theory in the abstract, we conclude that Newsuan’s
violent attack on officer Dempsey was a superseding cause
that severed any causal link between Dempsey’s initial
actions and his subsequent justified use of lethal force. We
will therefore affirm.
I. BACKGROUND
A. Factual Background
In the early morning hours of April 22, 2012, Officer
Thomas Dempsey of the City of Philadelphia Police
Department was on solo patrol in a radio car in North
Philadelphia. Dempsey was armed with a baton, a taser, and
a nine-millimeter Glock handgun. Around 2:00 a.m.,
Dempsey received a radio call that a naked man was standing
in the street in the 5800 block of North Mascher Street.
Dempsey and two other patrol officers responded to the call,
but found no one. Around 5:30 a.m., Dempsey responded to
another call about a naked man on the same block, but again
found no one.
3
At approximately 6:00 a.m., a passing motorist
informed Dempsey that a naked man was in the street at the
corner of North Mascher and Nedro Avenue. Dempsey
radioed in the information and drove down North Mascher to
the intersection. There, Dempsey saw a naked man, later
identified as Kenyado Newsuan, standing in front of a
residence at 5834 North Mascher.
Accounts diverge as to what happened next. The
record contains testimony from four eyewitnesses: Officer
Dempsey, Juan Cruz, Raimundo Rivera, and Newsuan’s
girlfriend, Christina La Torre.
i. Testimony of Officer Dempsey
Dempsey testified that as he crossed Nedro Avenue
into the 5800 block of North Mascher, he saw Newsuan
standing in the middle of the street. Dempsey estimated
Newsuan to be six feet tall and 220 pounds. As Dempsey
pulled to a stop, Newsuan began walking out of the street
toward a house (later determined to be La Torre’s residence).
Dempsey did not radio to dispatch that he had encountered
the subject or stopped his car. As Newsuan headed toward
the house, Dempsey exited the car with his taser in his hand
and told Newsuan to “come here.” 1 Newsuan began
screaming obscenities at Dempsey and “flailing his arms
around.” 2 Dempsey could see that Newsuan was completely
naked and had nothing in his hands. Dempsey told Newsuan
1
J.A. 102.
2
Id. 103.
4
to “[c]ome here” several more times, but Newsuan continued
up the walkway to the house. 3 Newsuan entered the house for
approximately two seconds and then emerged back onto the
walkway. He was still naked, and Dempsey could see that he
did not have a weapon.
Upon emerging from the house, Newsuan began
running toward Dempsey and yelling. Dempsey gave two
verbal commands to stop. When Newsuan was five feet
away, Dempsey fired his taser into Newsuan’s chest.
Newsuan kept coming forward and grabbed Dempsey’s shirt.
A violent struggle ensued. Newsuan struck Dempsey in the
head multiple times, threw Dempsey up against a parked van,
and then pushed him into a parked SUV. As they were
wrestling against the SUV, Newsuan reached for Dempsey’s
service weapon. Dempsey removed the gun from its holster,
wedged it between his body and Newsuan’s, and, from a
distance of no more than two inches, fired two shots into
Newsuan’s chest. Newsuan attempted to reach for the gun,
and Dempsey shot him again in the chest. Still grappling,
Newsuan reached for the gun again, and Dempsey shot him
again. Newsuan collapsed face down and died. La Torre
then emerged from the house screaming and crying;
according to Dempsey, this was the first time he encountered
her. Dempsey was taken to a hospital, treated for minor
injuries, and released the same night.
ii. Testimony of Juan Cruz
Cruz lived in a street-facing apartment on North
Mascher. At around 5:40 a.m., while Cruz was lying in bed,
3
Id. 104.
5
he heard a commotion between two people. He looked out
his window and saw Dempsey and Newsuan standing
approximately eight feet apart and “screaming at each
other.” 4 Newsuan “was approaching” Dempsey. 5 When
Newsuan closed within four feet of Dempsey, Dempsey shot
him with a taser. After being hit with the taser, Newsuan
“stopped, stuttered a little bit,” and then “just rushed”
Dempsey. 6 Newsuan lifted Dempsey up by his belt, began
“beating” Dempsey and “slamming” him onto the hood of the
squad car, and then pushed Dempsey against a parked
vehicle. 7 At that point “it looked like [Newsuan] was going
for” Dempsey’s gun. 8 Cruz heard a series of gunshots, and
Newsuan fell to the ground.
iii. Testimony of Raimundo Rivera
Like Cruz, Rivera also lived in a street-facing
apartment on North Mascher. In the early morning hours, he
heard yelling outside his apartment and what sounded like a
car door slamming. He also heard a man yelling, “I’m
Jehovah. The end is near.” 9 Rivera then heard (but did not
see) someone being tased. Rivera testified that he did not
hear “any statements or yelling or anything immediately
preceding the taser,” and he never heard Dempsey issue any
4
Id. 145.
5
Id.
6
Id. 146.
7
Id. 140, 146-47.
8
Id. 147.
9
Id. 167, 172.
6
commands to stop or get down on the ground. 10 Rivera got
up and went to the window, where he saw Newsuan
“completely naked, rushing over to the police officer.”11
Newsuan “slam[med] the officer against his patrol car and
grab[bed] him by the neck and start[ed] pummeling his head
against the car.” 12 Newsuan “reach[ed] for” Dempsey’s
13
gun. While Newsuan “had him by the neck,” Dempsey
unholstered the gun and shot Newsuan three times at close
range, at which point Newsuan fell to the ground. 14
iv. Testimony of Christina La Torre
La Torre testified that on the night of April 21,
Newsuan showed up at her house high on PCP 15 and acting
paranoid. Over the course of the night, Newsuan became
progressively more agitated, running out of the house and into
the street several times and yelling nonsensical phrases. At
some point around sunrise, Newsuan removed his clothes and
walked back onto North Mascher. Some minutes later,
Dempsey’s cruiser started coming up the block. La Torre,
who was standing near the doorway of her home, told
Newsuan to go inside to avoid arrest. Newsuan began
walking toward the house. According to La Torre, Dempsey
pulled up and asked her “what’s the problem.” 16 At this
point, Newsuan was “standing right there and trying to go
10
Id. 168, 175-76.
11
Id. 168.
12
Id.
13
Id.
14
Id. 169.
7
into the house.” 17 La Torre told Dempsey, “he’s on PCP” and
“he needs to be 302’d”—meaning, in police code, that
Newsuan needed to be involuntarily committed to a mental
health facility. 18 Dempsey told her, “don’t worry about it,
everything is under control.” 19 He also instructed her not to
let Newsuan into the house because there might be weapons
inside.
Dempsey began walking from the street toward the
house. As he did so, he said to Newsuan, “hey you, come
here.” 20 Newsuan “didn’t say anything” but just “star[ed] at”
Dempsey. 21 Dempsey walked up the path to the house and
repeated the command “to come towards him.” 22 According
to La Torre, Newsuan “just look[ed] at” her. 23 Dempsey
backed up, stepped down onto the pavement, and asked
15
PCP is the common abbreviation for phencyclidine, “a
controlled substance which causes hallucinations and serious
psychological disturbances.” Guilbeau v. W.W. Henry Co.,
85 F.3d 1149, 1164 n.41 (5th Cir. 1996) (citing R. SLOANE,
THE SLOANE-DORLAND ANNOTATED MEDICAL
LEGAL DICTIONARY 545 (1987)).
16
Id. 203.
17
Id.
18
Id.
19
Id.
20
Id. 204.
21
Id.
22
Id.
23
Id.
8
Newsuan if he could hear him. Newsuan “started walking”
toward Dempsey. 24 According to La Torre, “[a]s he started
approaching the police officer, [Dempsey] tased him.” 25 At
the time Dempsey tased him, Newsuan was not running at
Dempsey, but rather “walking in response to the officer
telling him to come here.” 26
Upon being tased, Newsuan’s “body started
convulging [sic], like shaking.” 27 Newsuan reached up and
pulled the taser prongs from his body, at which point
Dempsey drew his gun and began backing away from
Newsuan. Newsuan was “just staring” at Dempsey. 28 La
Torre ran back into the house, grabbed her phone, and began
calling Newsuan’s mother and brother. Through the window,
she could see Dempsey with his gun still drawn, but could not
see Newsuan. La Torre became frightened and ran into her
bedroom, meaning that she did not see the physical
altercation between Dempsey and Newsuan. While in the
bedroom, she heard four gunshots in rapid succession. She
went back out to the street and saw Newsuan lying in the
street. Newsuan died shortly thereafter.
24
Id.
25
Id.
26
Id.
27
Id.
28
Id. 205.
9
 B. Procedural Background
Plaintiff Geraldine Johnson, as administratrix of
Kenyado Newsuan’s estate, brought this action under 42
U.S.C. § 1983, alleging that Officer Dempsey used excessive
force against Newsuan in violation of the Fourth Amendment
and that the City of Philadelphia was liable for Dempsey’s
actions under Monell v. Department of Social Services, 29
Plaintiff also brought state-law claims for assault and battery
and wrongful death. After full discovery, the defendants
moved for summary judgment.
The District Court granted summary judgment to the
defendants. It held that there was no genuine material dispute
that Officer Dempsey reasonably used deadly force to defend
himself from Newsuan’s attack. In response to Plaintiff’s
argument that Dempsey should have retreated and awaited
backup rather than confront Newsuan, the court held that
Newsuan’s violent attack, and particularly his attempt to take
Dempsey’s gun, severed any causal link between Dempsey’s
initial actions at the scene and his subsequent use of lethal
defensive force. Because Plaintiff’s state-law claims were
either contingent on or required a higher showing than the
excessive force claim, the District Court dismissed them as
well. This appeal followed.
29
436 U.S. 658 (1978).
10
II. DISCUSSION 30
A claim that a police officer used excessive force
during a seizure is “properly analyzed under the Fourth
Amendment’s ‘objective reasonableness’ standard.” 31 There
is no dispute that Officer Dempsey “seized” Newsuan for
Fourth Amendment purposes when he shot and killed him. 32
The only question is whether Officer Dempsey’s use of force
was objectively reasonable under the circumstances. 33 At the
summary judgment stage, once we identify the relevant facts
and draw all inferences in the non-movant’s favor, the
reasonableness of an officer’s actions “is a pure question of
law.” 34
30
The District Court had subject matter jurisdiction pursuant
to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28
U.S.C. § 1291. “[O]ur review of a grant of summary
judgment is plenary, and in making that review we use the
same standard as a district court: whether there are genuine
issues of material fact precluding entry of summary
judgment.” Acumed LLC v. Advanced Surgical Servs., Inc.,
561 F.3d 199, 211 (3d Cir. 2009). A fact is “material” if it
could affect the outcome, and an issue of material fact is
“genuine” if the evidence is sufficient to permit a reasonable
jury to return a verdict for the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986).
31
Graham v. Connor, 490 U.S. 386, 388 (1989).
32
Tennessee v. Garner, 471 U.S. 1, 7 (1985).
33
See Abraham v. Raso, 183 F.3d 279, 290 (3d Cir. 1999)
(quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)).
34
Scott v. Harris, 550 U.S. 372, 381 n.8 (2007).
11
Before proceeding, it is necessary to clarify our Fourth
Amendment standard in deadly-force cases. Following the
Supreme Court’s lead in Tennessee v. Garner, 35 we have
previously suggested that an officer’s use of deadly force is
justified under the Fourth Amendment only when (1) the
officer has reason to believe that the suspect poses a
“significant threat of death or serious physical injury to the
officer or others,” and (2) deadly force is necessary to prevent
the suspect’s escape or serious injury to others. 36 In Scott v.
Harris, however, the Supreme Court clarified that “Garner
did not establish a magical on/off switch that triggers rigid
preconditions whenever an officer’s actions constitute ‘deadly
force.’” 37 Rather, Garner was “simply an application of the
Fourth Amendment’s ‘reasonableness’ test to the use of a
particular type of force in a particular situation.” 38 Scott
abrogates our use of special standards in deadly-force cases
and reinstates “reasonableness” as the ultimate—and only—
inquiry. “Whether or not [an officer’s] actions constituted
application of ‘deadly force,’ all that matters is whether [the
officer’s] actions were reasonable.” 39 This is not to say that
the considerations enumerated in Garner are irrelevant to the
reasonableness analysis; to the contrary, in many cases,
including this one, a proper assessment of the threat of injury
35
471 U.S. at 3.
36
See Abraham, 183 F.3d at 289.
37
550 U.S. 372, 382 (2007).
38
Id. (internal citations omitted).
39
Id. at 383; see also Acosta v. Hill, 504 F.3d 1323, 1324 (9th
Cir. 2007) (under Scott, “there is no special Fourth
Amendment standard for unconstitutional deadly force”).
12
or the risk of flight is crucial to identifying the magnitude of
the governmental interests at stake. But such considerations
are simply the means by which we approach the ultimate
inquiry, not constitutional requirements in their own right.
The reasonableness of a seizure is assessed in light of
the totality of the circumstances. 40 We analyze this question
“from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight,” making
“allowance for the fact that police officers are often forced to
make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.” 41
We begin with a proposition that can scarcely be
disputed: once Newsuan began reaching for Dempsey’s gun,
Dempsey was justified in using deadly force to defend
himself. Each of the three witnesses to the fight (Cruz,
Rivera, and Dempsey) testified that Newsuan rushed at
Dempsey, began violently grappling with him, and slammed
Dempsey into multiple cars. 42 Dempsey and Rivera testified
that Newsuan struck Dempsey in the head multiple times. All
three witnesses agree that Newsuan then attempted to grab
Dempsey’s gun out of its holster. At that point there was a
serious risk that Newsuan would kill Dempsey, and no
40
Abraham, 183 F.3d at 289.
41
Graham, 490 U.S. at 396-97.
42
The fourth witness, La Torre, had retreated to her bedroom
and did not see the altercation.
13
reasonable juror could conclude that it was unreasonable for
Dempsey to deploy lethal force in response. 43
This conclusion, however, does not end the inquiry. A
proper Fourth Amendment analysis requires us to assess not
only the reasonableness of Dempsey’s actions at the precise
moment of the shooting, but the “totality of circumstances”
leading up to the shooting. 44 Building out from this principle,
Plaintiff argues that even if Dempsey was justified in using
43
Plaintiff claims that Dempsey was carrying his handgun in
a department-issued holster that makes it difficult for
someone who is not the officer to remove the gun. Whatever
the precise likelihood that Newsuan would have been able to
remove the gun, the unrebutted testimony is that Newsuan
was violently assaulting Dempsey and striking him repeatedly
in the head, despite having been shot point-blank with a taser.
Given that the two men were already engaged in a life-
threatening physical struggle, Newsuan’s attempt to wrest
away Dempsey’s weapon was ample justification for the use
of defensive deadly force in that instant.
44
See Abraham, 183 F.3d at 292 (recognizing that “events
prior to a seizure” should “be considered in analyzing the
reasonableness of the seizure”); see also id. at 291-92 (“[W]e
want to express our disagreement with those courts which
have held that analysis of ‘reasonableness’ under the Fourth
Amendment requires excluding any evidence of events
preceding the actual seizure. . . . [W]e do not see how these
cases can reconcile the Supreme Court’s rule requiring
examination of the ‘totality of the circumstances’ with a rigid
rule that excludes all context and causes prior to the moment
the seizure is finally accomplished.”).
14
deadly force after he was attacked, the seizure as a whole was
unreasonable because Dempsey should never have confronted
Newsuan in the first place. In support of this argument,
Plaintiff cites a Philadelphia Police Department directive that
instructs officers who encounter severely mentally disabled
persons (including persons experiencing drug-induced
psychosis) to wait for back-up, to attempt to de-escalate the
situation through conversation, and to retreat rather than
resort to force. 45 Plaintiff points out that Dempsey knew or
should have known that Newsuan was obviously disturbed; 46
45
Philadelphia Police Directive 136 instructs patrol officers
who encounter a severely mentally disabled person to, among
other things, “[a]ssess the situation, attempt to de-escalate the
situation through communication, take defensive measures,
and attempt to maintain a zone of safety”; “[r]equest adequate
back up”; “[r]equest a supervisor”; “avoid any immediate
aggressive action unless there is an imminent threat to life or
physical danger to the [subject], the police, or other civilians
present”; and “[a]ttempt to place themselves in a position that
does not require taking unnecessary or overly aggressive
actions.” J.A. 24-25.
46
Officer Dempsey testified that on each of the five previous
occasions he had encountered a naked person in the street, the
person had been high on PCP. He could tell these persons
were under the influence of PCP because he knew that,
“[w]hen someone does PCP they get hot inside. . . . So they
take off their clothing and they go outside, and then the
appearance of being high. That’s what leads me to believe
they’re on PCP.” J.A. 94. Dempsey could not recall whether
he suspected that Newsuan was under the influence of PCP,
but acknowledged that the radio description of Newsuan’s
behavior “fits with the symptoms of PCP.” Id. 101.
15
that Dempsey knew Newsuan was naked and unarmed; and
that Dempsey also knew that he had responded to two prior
calls to the same area without receiving any indication that
the subject was endangering or threatening people. Plaintiff
asserts that, under these circumstances, it was unreasonable
for Dempsey to flout departmental policy by initiating a one-
on-one encounter with Newsuan.
We do not automatically discount Plaintiff’s Fourth
Amendment argument or the two presumptions on which it
rests: that official police department policies may be
considered among other things in the reasonableness inquiry47
and that a “totality of the circumstances” analysis should
account for whether the officer’s own reckless or deliberate
47
Our sister circuits have split on the question of whether
police department policies may be used to assess whether a
seizure is reasonable under the Fourth Amendment. Compare
Stamps v. Town of Framingham, 813 F.3d 27, 32 n.4 (1st Cir.
2016) (police training and procedures “do not, of course,
establish the constitutional standard but may be relevant to
the Fourth Amendment analysis”), and Drummond ex rel.
Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir.
2003) (“Although . . . training materials are not dispositive,
we may certainly consider a police department’s own
guidelines when evaluating whether a particular use of force
is constitutionally unreasonable.”), with Tanberg v. Sholtis,
401 F.3d 1151, 1163-64 (10th Cir. 2005) (“That an arrest
violated police department procedures does not make it more
or less likely that the arrest implicates the Fourth
Amendment, and evidence of the violation is therefore
irrelevant.”).
16
conduct unreasonably created the need to use deadly force. 48
But there is no need for us to take up such constitutional
considerations here, because Plaintiff’s claim founders on a
more fundamental tort requirement: proximate causation.
Whether or not Dempsey acted unreasonably at the
outset of his encounter with Newsuan, Plaintiff must still
prove that Dempsey’s allegedly unconstitutional actions
proximately caused Newsuan’s death. 49 Under ordinary tort
principles, a superseding cause breaks the chain of proximate
causation. 50 In Bodine v. Warwick, we recognized that this
principle limits Section 1983 liability for an officer’s use of
force even where the officer’s initial actions violate the
Fourth Amendment:
Suppose that three police officers go to a
suspect’s house to execute an arrest warrant and
that they [enter illegally] . . . . Once inside, they
48
See Abraham, 183 F.3d at 292 (“[W]e think all of the
events transpiring during the officers’ pursuit of [the suspect]
can be considered in evaluating the reasonableness of [the
officer’s] shooting.”); Jiron v. City of Lakewood, 392 F.3d
410, 415 (10th Cir. 2004) (“The reasonableness of the use of
force depends not only on whether the officers were in danger
at the precise moment that they used force, but also on
whether the officers’ own reckless or deliberate conduct
during the seizure unreasonably created the need to use such
force.” (internal quotation omitted)).
49
See Martinez v. California, 444 U.S. 277, 285 (1980).
50
Lamont v. New Jersey, 637 F.3d 177, 185-86 (3d Cir.
2011); Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir. 1993).
17
encounter the suspect, identify themselves,
show him the warrant, and tell him that they are
placing him under arrest. The suspect, however,
breaks away, shoots and kills two of the
officers, and is preparing to shoot the third
officer when that officer disarms the suspect
and in the process injures him. Is the third
officer necessarily liable for the harm caused to
the suspect on the theory that the illegal entry . .
. rendered any subsequent use of force
unlawful? The obvious answer is “no.” The
suspect’s conduct would constitute a
“superseding” cause that would limit the
officer’s liability. 51
While there is no precise test for determining when a
civilian’s intervening acts will constitute a superseding cause
of his own injury, relevant considerations include whether the
harm actually suffered differs in kind from the harm that
would ordinarily have resulted from the officer’s initial
actions; whether the civilian’s intervening acts are a
reasonably foreseeable response to the officer’s initial
actions; whether the civilian’s intervening acts are themselves
inherently wrongful or illegal; and the culpability of the
civilian’s intervening acts. 52
Although proximate causation is generally a question
of fact, 53 it “becomes an issue of law when there is no
51
Id (citations omitted).
52
See Restatement (Second) of Torts § 442 (1965).
53
Rivas v. City of Passaic, 365 F.3d 181, 193 (3d Cir. 2004).
18
evidence from which a jury could reasonably find the
required proximate, causal nexus between the careless act and
the resulting injuries.” 54 Here, we conclude as a matter of
law that Newsuan’s violent, precipitate, and illegal attack on
Officer Dempsey severed any causal connection between
Dempsey’s initial actions and his subsequent use of deadly
force during the struggle in the street. Whatever harms we
may expect to ordinarily flow from an officer’s failure to
await backup when confronted with a mentally disturbed
individual, they do not include the inevitability that the
officer will be rushed, choked, slammed into vehicles, and
forcibly dispossessed of his service weapon. We therefore
have little trouble concluding that Newsuan’s life-threatening
assault, coupled with his attempt to gain control of
Dempsey’s gun, was the direct cause of his death.
Before continuing on, however, we sound a note of
caution. The question of proximate causation in this case is
made straightforward by the exceptional circumstances
presented—namely, a sudden, unexpected attack that
instantly forced the officer into a defensive fight for his life.
As discussed above, that rupture in the chain of events,
coupled with the extraordinary violence of Newsuan’s
assault, makes the Fourth Amendment reasonableness
analysis similarly straightforward. Given the extreme facts of
this case, our opinion should not be misread to broadly
immunize police officers from Fourth Amendment liability
whenever a mentally disturbed person threatens an officer’s
physical safety. Depending on the severity and immediacy of
54
Port Auth. of N.Y. & N.J. v. Arcadian Corp., 189 F.3d 305,
318 (3d Cir. 1999) (quoting Gaines-Tabb v. ICI Explosives,
USA, Inc., 160 F.3d 613, 620 (10th Cir. 1998)).
19
the threat and any potential risk to public safety posed by an
officer’s delayed action, it may be appropriate for an officer
to retreat or await backup when encountering a mentally
disturbed individual. It may also be appropriate for the
officer to attempt to de-escalate an encounter to eliminate the
need for force or to reduce the amount of force necessary to
control an individual. 55 Nor should it be assumed that
mentally disturbed persons are so inherently unpredictable
that their reactions will always sever the chain of causation
between an officer’s initial actions and a subsequent use of
force. If a plaintiff produces competent evidence that persons
who have certain illnesses or who are under the influence of
certain substances are likely to respond to particular police
actions in a particular way, that may be sufficient to create a
jury issue on causation. And of course, nothing we say today
should discourage police departments and municipalities from
devising and rigorously enforcing policies to make tragic
events like this one less likely. 56 The facts of this case,
55
See Martin v. City of Broadview Heights, 712 F.3d 951,
958 (6th Cir. 2013) (reasonable jury could conclude that
officers should have de-escalated encounter with distraught
individual through verbal intervention rather than physical
force); Deorle v. Rutherford, 272 F.3d 1272, 1282-83 (9th
Cir. 2001) (holding that a civilian’s mental status must be
considered in determining the reasonableness of a use of
force, and observing that, with respect to emotionally
disturbed persons, “a heightened use of less-than-lethal force
will usually be helpful in bringing a dangerous situation to a
swift end”).
56
See Megan Pauly, How Police Officers Are (or Aren’t)
Trained in Mental Health, The Atlantic, (Oct. 11, 2013)
http://www.theatlantic.com/health/archive/2013/10/how-
20
however, are extraordinary. Whatever the Fourth
Amendment requires of officers encountering emotionally or
mentally disturbed individuals, it does not oblige an officer to
passively endure a life-threatening physical assault, regardless
of the assailant’s mental state.
Finally, Plaintiff offers an alternative basis for Fourth
Amendment liability. In addition to faulting Dempsey for the
manner in which he initiated the encounter, Plaintiff suggests
that it was also unreasonable for Officer Dempsey to shoot
Newsuan with his taser during the lead-up to the fight. This
contention is buttressed by La Torre’s testimony that
Newsuan was simply walking toward Dempsey in compliance
with Dempsey’s orders when Dempsey tased him, as well as
by Rivera’s testimony that he never heard Dempsey issue any
commands before tasing Newsuan. But even if we were to
deem this particular use of force unreasonable, the requisite
causal connection between the taser strike and Dempsey’s
later use of deadly force would still be lacking.
According to La Torre, after Dempsey shot Newsuan
with the taser, Newsuan reached up and pulled the taser
prongs from his body. Dempsey then drew his gun and
began backing away from Newsuan, while Newsuan “just
star[ed]” at him. 57 La Torre ran back inside and called
Newsuan’s mother and brother on the phone. The last thing
police-officers-are-or-aren-t-trained-in-mental-health/280485/
(last visited August 16, 2016) (discussing prevalence,
success, and challenges of so-called Crisis Intervention
Training for police officers).
57
J.A. 205.
21
she saw from the window was Dempsey standing with his
gun drawn. This testimony establishes that Newsuan was
essentially unfazed by the taser strike. According to
La Torre, Newsuan simply removed the taser prongs and
stared at Dempsey in a continued standoff that lasted long
enough for La Torre to place two phone calls from inside the
house. Therefore, even after drawing all inferences in
Plaintiff’s favor, no reasonable juror could conclude that
Newsuan’s subsequent physical attack was an involuntary or
foreseeable defensive response to the taser strike described by
La Torre.
More importantly, La Torre did not see any part of the
physical fight, including who initiated it or how Dempsey and
Newsuan went from a gun-drawn standoff, as recounted by
La Torre, to a close-quarters fight. What this means is that
the only evidence concerning how Newsuan and Dempsey
came into physical contact is the unrebutted testimony of
Dempsey, Cruz, and Rivera. Each of them testified that
Newsuan rushed at Dempsey unprovoked and that the taser
barely slowed Newsuan in his attempt to grab Dempsey.
Each of them also testified that Newsuan slammed Dempsey
into parked cars and reached for Dempsey’s gun. In the
absence of a competing account, those undisputed actions are
superseding causes that absolve Dempsey of any liability for
his initial conduct.
III. CONCLUSION
For the foregoing reasons, we conclude that Office
Dempsey’s use of deadly force was reasonable under the
circumstances, and that any allegedly unreasonable decisions
he made during his initial encounter with Newsuan did not
22
proximately cause Newsuan’s death. Our dismissal of
Plaintiff’s Fourth Amendment claim requires the dismissal of
her remaining Monell and state-law claims as well. 58
We will therefore affirm the judgment of the District
Court.
58
See Pl. Br. 33-34 (“Plaintiff agrees that if there is no claim
against Officer Dempsey under the Fourth Amendment then
Plaintiff has no right to assert its state claims against
Dempsey and its Monell claim against the City.”); Grazier ex
rel. White v. City of Phila., 328 F.3d 120, 124 (3d Cir. 2003)
(municipality cannot be held liable on a Monell claim absent
an underlying constitutional violation); Renk v. City of
Pittsburgh, 641 A.2d 289, 293 (Pa. 1994) (under
Pennsylvania law, the “reasonableness of the force used in
making the arrest determines whether the police officer’s
conduct constitutes an assault and battery”); Sunderland v.
R.A. Barlow Homebuilders, 791 A.2d 384, 390-91 (Pa. Super.
Ct. 2002) (“A wrongful death action is derivative of the injury
which would have supported the decedent’s own cause of
action and is dependent upon the decedent’s cause of action
being viable at the time of death.”).
23
Johnson v. City of Philadelphia
No. 15-2346
_________________________________________________
ROTH, Circuit Judge, dissenting:
While the members of the majority may be satisfied
that Newsuan’s attack on Officer Dempsey was sufficient to
sever any causal chain, I believe that Newsuan’s reaction was,
unfortunately, all too foreseeable. Directive 136—the police
regulation that Officer Dempsey supposedly violated—states
that its main objective “is to aid and protect the interests of
the [mentally disturbed person], innocent bystanders, and
family members in the immediate area, without
compromising the safety of all parties concerned, including
the police officers. This is best accomplished by DE-
ESCALATING THE INCIDENT” (emphasis in original). 1
The purpose of regulations like Directive 136 is clear—to
reduce the risk of a deadly confrontation with an extremely
vulnerable population. That such a regulation is necessary to
reduce the risk of a deadly confrontation demonstrates that
1
While this directive is cited as “Directive 136” by both
parties, as of January 9, 2015, the directive appears under the
number 10.9. J.A. 21–29 (being cited as Directive 136);
Severely Mentally Disabled Persons, Philadelphia Police
Department (Jan. 9, 2015), available at
https://www.phillypolice.com/assets/directives/D10.9-
SeverelyMentallyDisabledPersons.pdf (being cited as
Directive 10.9).
1
deadly confrontations are a foreseeable result of ignoring the
regulation.
Viewing the facts before us in a light most favorable to
the non-movant, Officer Dempsey, ignoring the Philadelphia
Police Department’s calculated use of caps lock, escalated the
incident. Facing a naked, unarmed man who by all accounts
had not been reported to the police as an “immediate threat to
life or physical danger” to anyone, Officer Dempsey
approached Newsuan and beckoned him to “come here,”
without backup, in violation of police regulation. By
Dempsey’s own account, his approach was not made to
apprehend and secure Newsuan, but was made because
Dempsey “wanted to see if [Newsuan] was in some type of
distress. He obviously needed some type of care.” 2 By
knowingly violating a police department regulation designed
to keep mentally disturbed individuals safe, Dempsey set into
motion the confrontation that ultimately led to Newsuan’s
death – a confrontation whose foreseeability was the impetus
for the establishment of Directive 136.
Our limited precedent on the issue of superseding
causes in excessive force cases is instructive. In Lamont v.
New Jersey, we held that an individual’s quick hand
movement—perceived by officers as drawing a weapon—
occurring after officers had violated police procedures to
pursue the individual, constituted a superseding cause. 3 In so
holding, we noted that a contrary holding would “tend to
deter police officers ‘from approaching and detaining
2
J.A. at 102-03.
3
637 F.3d 177, 186 (2011).
2
potentially violent suspects.’” 4 But the officers in Lamont
were pursuing an individual who, they expected, was armed
and potentially dangerous. The officers were so informed
when they chose to violate police procedures in pursuing him.
Such cannot be said of Officer Dempsey here, as Newsuan
was clearly unarmed and had not been exhibiting violent
conduct prior to their interaction. There is an important
distinction between these two types of cases—one in which
an officer, through his conduct, creates the situation that calls
for the use of force, and one in which the officer’s
misconduct, while perhaps factually linked to the eventual use
of force, does not contribute to the “dangerous situation.” 5
Additionally, holding that Newsuan’s behavior was not a
superseding cause would not create the perverse deterrent
effects we feared in Lamont: to the contrary, deterring police
officers from approaching mentally disturbed suspects in a
way that may compromise the safety of either the officer or
the individual is an end we should seek to achieve, rather than
avoid.
I am also not persuaded that Newsuan’s attack was an
unforeseeable result of his being tased by Officer Dempsey.
Taking the facts in the light most favorable to the non-
movant, Dempsey was aware that Newsuan was on PCP at
the time of their encounter. The Philadelphia Police
Department teaches its officers that a taser strike may fail to
4
Id. (quoting Hundley v. District of Columbia, 494 F.3d
1097, 1105 (D.C. Cir. 2007)).
5
See Estate of Starks v. Enyart, 5 F.3d 230 (7th Cir. 1993)
(officer who jumped in front of a speeding car, then used
deadly force to stop driver, would not be entitled to qualified
immunity).
3
subdue a suspect on PCP due to the drug’s effects on pain
tolerance. 6 It was therefore foreseeable to Officer Dempsey
that his taser would be ineffective against Newsuan. The
most favorable account of the facts prior to Newsuan’s being
tased is that Newsuan was “approaching” Officer Dempsey—
presumably in response to Dempsey’s request that Newsuan
“come here.” A jury could reasonably conclude that Officer
Dempsey, by firing his taser, took an “immediate aggressive
action” in violation of police department regulations and in
doing so escalated the situation and created a risk of harm to
both himself and to Newsuan.
The death of individuals with mental health problems
at the hands of the police continues to occur across the
country. 7 The first line of defense against these incidents is
the establishment of police regulations designed to prevent
interactions between police officers and mentally disabled
people from escalating into deadly confrontations. Declaring
that an officer who disregards such a regulation has not
proximately caused a violent confrontation that the regulation
is in place to prevent renders the regulation toothless. Given
the available factual accounts of the events leading up to
Newsuan’s eventual death, including the possible disregard of
a regulation that was designed to guard against violent
confrontations, I cannot say that “there is no evidence from
which a jury could reasonably find the required proximate,
6
J.A. 244.
7
E.g., Kate Mather and James Queally, More Than a Third of
People Shot by L.A. Police Last Year Were Mentally Ill,
LAPD Report Finds, L.A. Times (Mar. 1, 2016),
http://www.latimes.com/local/lanow/la-me-ln-lapd-use-of-
force-report-20160301-story.html.
4
causal nexus between the careless act and the resulting
injuries.” 8
For the above reasons, I respectfully dissent. I would
reverse the judgment of the District Court and remand this
case for further proceedings.
8
Port Auth. of N.Y. & N.J. v. Arcadian Corp., 189 F.3d 305,
318 (3d Cir. 1999) (quoting Gaines-Tabb v. ICI Explosives,
USA, Inc., 160 F.3d 613, 620 (10th Cir. 1998)).
5