Defense Digest

Close Judicial Scrutiny of Qualified Immunity and Municipal Liability in an Excessive Use-of-Force Death Case

Carswell v. Borough of Homestead, 2004 US App. Lexis 17732 (3d. Cir. 2004) represents all that is difficult and dangerous when police officers are thrust into the middle of a violent domestic situation. The case also represents the intense scrutiny that will occur when such police encounters result in death. The Federal District Court and the Third Circuit Court of Appeals engaged in a detailed qualified immunity analysis into the actions of the police officer in this case and evaluated the decisions of borough officials in training and equipping borough police officers.

In 1999, the plaintiff and her husband began to encounter marital difficulties. She obtained a Protection for Abuse Order on July 3, 1999. In August the Homestead police were summoned to the plaintiff’s residence for more domestic violence, which led to the plaintiff filing an indirect criminal complaint in October, 1999.

Approximately one week later, Homestead police officers were summoned to the plaintiff’s residence because the plaintiff’s decedent violated the PFA Order. On arrival, the plaintiff’s decedent could not be located by the police. However, later that evening the plaintiff’s decedent was observed operating a vehicle in an alley behind her residence. When the officer attempted to obstruct his path with a marked police car, the plaintiff’s decedent accelerated, struck the police car, knocking it out of the way, and fled. As a result of this incident, a felony warrant was issued for the plaintiff’s decedent’s arrest.

During the evening hours of November 17th and through the early morning hours of November 18, 1999, the plaintiff’s decedent appeared at her residence on four occasions. He was spotted again at 2:10 a.m., and a pursuit ensued, terminating at an alley in Munhall Borough. Officer Frank Snyder took part and pulled his marked police unit into the alley, with his take down lights and high beams turned on. The plaintiff’s decedent ran in the direction of Officer Snyder, angeling toward the passenger side of the police car. Officer Snyder exited his vehicle and maneuvered around the rear, drawing his service pistol. He positioned himself between the right-rear corner of the police vehicle and a wall to his right, pointed his handgun in the direction of the plaintiff’s decedent, and yelled for the plaintiff’s decedent to stop. The plaintiff’s decedent continued to sprint at full speed and ran into Officer Snyder. The force of the impact caused Officer Snyder to lose the grip on his handgun. As the officer attempted to re-grip the gun as it fell from his hands, the gun discharged accidentally. The bullet struck the plaintiff's decedent, killing him.

The plaintiff, on behalf of the Estate of Gilbert Carswell and on behalf of the next of kin of Gilbert Carswell, filed a complaint in the United States District Court for the Western District of Pennsylvania pursuant to 42 U.S. §1983. The plaintiff named as defendants the Borough of Homestead, its Chief of Police, Mark Zuger, and Police Officer Frank Snyder. After extensive discovery and the filing of dispositive motions, the case went to trial.

The plaintiff presented a case to the jury that Officer Snyder’s version of the events could not be believed. Rather, it was the plaintiff's position that Officer Snyder shot the plaintiff’s decedent intentionally, which she believed constituted an excessive use-of-force in violation of the Fourth Amendment. In addition to fact witnesses, the plaintiff presented the expert testimony of a ballistics expert, a use-of-force/police tactics expert, who also offered opinions regarding the training and equipping of police officers, and a pathologist. The plaintiff rested her case after presenting six days of testimony. The defendants then moved for judgment as a matter of law pursuant to F.R.C.P. 50.

During the lengthy colloquy between the court and counsel, the court, allowing for all inferences in favor of the plaintiff for purposes of Rule 50, assumed for the sake of argument that Officer Snyder intentionally shot and killed Gilbert Carswell as he ran toward him in the alley. The court found for purposes of Rule 50 that a constitutional violation had occurred. The court explained that, even if there had been no Rule 50 motion, the court would have engaged in an analysis with regard to continuing the case against Officer Snyder anyway as it was the court’s opinion that the Supreme Court decision Saucier v. Katz, 533 U.S. 194 (2001) dealt as much with procedure as with substantive law. The court explained that he felt that it was his duty under Saucier and the qualified immunity doctrine to continually analyze whether the officer was immune from suit.

Scientific evidence was critical to the court’s analysis in determining what a reasonable police officer would have believed, and then how a reasonable police officer would have reacted under the same circumstances. The court found that the plaintiff’s expert’s own testimony indicated that gun powder residue found on the plaintiff’s decedent’s hands indicated that his hands were extended out in front of him, as described by Officer Snyder. The court found that there was no evidence to support the plaintiff’s contention that the plaintiff’s decedent’s hands were above his head in a surrender fashion. Furthermore, the trajectory of the bullet was such that the bullet entered the center of the plaintiff’s decedent’s chest, exited beneath his left arm, and ricocheted off two walls before nearly striking another police officer further down the alley, thus, eroding the plaintiff’s unproven contentions that the plaintiff’s decedent was surrendering at the time he was shot and that Officer Snyder intentionally shot him as the plaintiff’s decedent ran toward him.

The court further considered the officer’s knowledge of the actions of the plaintiff’s decedent in the recent past, including his ramming another police car in an attempt to escape; his four visits to his residence that evening, all in violation of the PFA Order; and the seemingly rising violence with each visit. The court found the officer’s perception that the violence appeared to be increasing that night to be reasonable and that, under Pennsylvania’s justification law found at 18 Pa. C.S. §508, the officer reasonably believed that both his life was in danger and that if the plaintiff’s decedent escaped, Mrs. Carswell and her children would be in danger. On this basis, assuming for purposes of the Rule 50 motion that Officer Snyder intentionally shot Gilbert Carswell, the court was of the opinion that Saucier v. Katz required the dismissal of the officer on the ground of qualified immunity. The court ruled that a reasonable police officer, standing in the shoes of Officer Snyder as he faced down a charging man, would have believed that lethal force was necessary under the circumstances.

The court then turned his attention to the Chief of Police and the municipality. The plaintiff was of the opinion that, because Officer Snyder was not in possession of any non-lethal (in modern day parlance now referred to as "less-than-lethal") weapons, he was left with no alternative but to use deadly force. The lynchpin of the plaintiff’s Monell claim was an "admission" by Officer Snyder during his deposition that, if he had been in possession of a less-than-lethal weapon, he would not have drawn his gun when he exited his police vehicle as the plaintiff’s decedent was running down the alley. However, because the court reasoned that the officer was immune, and because the plaintiff had not presented any evidence of prior incidents of unjustified shootings by borough police officers, the borough and its Police Chief must be dismissed as well.

The plaintiff appealed the trial court ruling to the Third Circuit Court of Appeals. The plaintiff emphasized that it was a question for a jury to resolve as to whether the shooting was justified. The plaintiff continued to argue that the plaintiff’s decedent was in the act of surrendering at the time that he was shot. It was further argued that the plaintiff’s decedent was obviously unarmed, with his hands and arms fully exposed at the time that he was shot. The plaintiff argued that the municipality was liable under Monell for failing to provide less-than-lethal weapons to its police officers, for failing to train the police officers in the use of less-than-lethal weapons, and for failing to require officers to carry less-than-lethal weapons on duty.

The Third Circuit unanimously upheld the grant of qualified immunity for Officer Snyder, but on the basis that no constitutional violation had occurred. A majority of the court also upheld the dismissal of the claims against Chief Zuger and the borough. However, Judge McKee wrote a strenuous dissenting opinion to the dismissal of the borough. This dissenting opinion is well worth careful review, particularly if one subscribes to the adage that today’s dissent is tomorrow’s majority opinion.

Judge McKee believes that, based on the facts before the jury in this case, the borough's not providing less-than-lethal weapons to its officers, not training the officers in this type of weapon, and not requiring the officers to carry the weapon at the very least creates a question of fact for a jury to decide whether such conduct on the part of the borough constituted deliberate indifference. Such facts, according to the dissent, establish a prime facia case of municipal liability.

The question that should be considered by municipal officials, then, is whether it is satisfactory in today’s world, recognizing the growing complexities of law enforcement, for a municipality to require its officers to carry only lethal weapons or whether more is required in order for police officers to be better equipped to handle situations in which force is required, or whether, perhaps, less-than-lethal force is sufficient. The Carswell case was scrutinized by federal and state law enforcement authorities and was litigated in federal court for five years. It remains whether such cases, under similar circumstances, will stand up to such scrutiny moving into the future.

*Paul is a shareholder in our Pittsburgh, Pennsylvania office. He can be reached at (412) 803-1149 or pkrepps@mdwcg.com.