Nicholas Malfitano Feb. 17, 2016, 1:30pm


PHILADELPHIA – A prior-approved summary judgment motion in an excessive force action has been vacated by the U.S. Court of Appeals for the Third Circuit, and the action has been remanded to the U.S. District Court for the Western District of Pennsylvania.

The case came before Third Circuit judges Thomas I. Vanaskie, Patty Shwartz and L. Felipe Restrepo, with Shwartz authoring the Court’s opinion, in Mary Estep’s lawsuit against Police Officer Mackey, Borough of Cresson, Township of Cresson, Borough of Portage, Officer Kelly Bolvin, Borough of South Fork and Police Officer Donald Wyar (Mackey and Wyar are the only defendants remaining in the litigation).

On Sept. 20, 2009, when suspects Craig Baum and Regine Robine were being brought into a police station to be strip-searched for drugs, subsequent to a traffic stop just minutes before drug paraphernalia was found, Mackey removed a taser from his holster and warned Baum if he ran, he would be tased.

Mackey let go of Baum to unlock the door to the station, and Baum jerked away and began to run across the street. Mackey then fired his taser, which attached to Baum’s back for five seconds. The electricity from the taser caused Baum to lose muscle control, fall to the ground, and strike his head on the curb.

Baum sustained a traumatic brain injury that later rendered him incapacitated. When asked why he had run, Baum admitted he had stuffed heroin down his pants, and the officers recovered the heroin.

On Baum’s behalf, his guardian Estep filed Monell claims under Section 1983 against Mackey for excessive force, as well as the Boroughs of Cresson and Portage for municipal liability for failure to train and supervise their officers.

The District Court granted summary judgment in favor of the Boroughs, but denied summary judgment to Mackey on the excessive force claim and for qualified immunity, citing genuine issues of material fact that must be resolved by a jury, including whether the incident took place in the context of an arrest, and whether Baum posed a threat to the safety of the officers or others. Mackey appealed.

“In this case, the District Court defined the right at issue as the Fourth Amendment right to be free from the excessive use of force,” Shwartz said. “This formulation lacks the required level of specificity and does not address the question that needs to be answered in this context, because it does not describe the specific situation that the officers confronted. As a result, we will remand to the District Court to allow it to more specifically identify the right at issue.”

Shwartz added after the District Court formulates the right, its second objective will be to determine if that right was clearly established at the time the taser was used against Baum, and the identification of that same right depends on the facts of the case.

“While a court need not find that ‘the very action in question has previously been held unlawful,’ to be clearly established, it must ‘conclude that the firmly settled state of the law, established by a forceful body of persuasive precedent, would place a reasonable official on notice that his actions obviously violated a clearly established constitutional right,” Shwartz said.

“If the District Court determines that such a right was clearly established, it would then determine whether the facts it already correctly found to be in dispute are material to assessing whether that right was violated,” Shwartz stated.

The Third Circuit concluded by vacating the prior order of summary judgment and remanding the case to the U.S. District Court for the Western District of Pennsylvania, for further proceedings.

The plaintiff is represented by Ezra Wohlgelernter and Thomas Martin of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig, in Philadelphia.

The defendants are represented by Kimly C. Vu and Suzanne B. Merrick of Thomas Thomas & Hafer and Scott G. Dunlop and Danielle M. Vugrinovich, of Marshall Dennehey Warner Coleman & Goggin, both in Pittsburgh.

U.S. Court of Appeals for the Third Circuit case 15-1943

U.S. District Court for the Western District of Pennsylvania case 3:11-cv-00207

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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