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Defense Digest

A Deadly Encounter: Court Clarifies Use of Force in Police Shooting of Mentally Ill Individual

Defense Digest, Vol. 31, No. 1, March 2025

March 1, 2025

Key Points:

  • Use of Deadly Force: The court upheld the police officers’ use of deadly force, which is relevant for insurance coverage in similar incidents.
  • Municipal Liability: No liability for the defendant as there was no constitutional violation, impacting municipal coverage decisions. 
  • State-Law Claims: Dismissal of wrongful death and emotional distress claims highlights the importance of reasonable officer actions in defending state-law claims. 
  • Ongoing Appeal: The case is under appeal, potentially influencing future police liability coverage and claims.

On August 3, 2021, Plymouth Township police officers responded to a crisis involving Michael Paone, a 22-year-old with a history of mental illness, which tragically resulted in his death. The case addressed the complex intersection of mental health, police use of deadly force, and constitutional rights. Judge Joshua Wolson granted the defendants’ motion for summary judgment, concluding the law enforcement officers acted within their rights when responding to a perceived deadly threat, thus providing crucial guidance on police decision-making in such high-stakes encounters.

The Facts of the Case
On the evening of August 3, 2021, Michael Paone was exhibiting erratic behavior and appeared to be armed with a firearm outside an apartment complex. Paone had previously been diagnosed with multiple mental health disorders, including bipolar disorder and schizophrenia. Paone’s sister called 911, reporting he was armed with a knife and experiencing a mental health crisis, and she informed the dispatcher that Michael had a “fake toy gun.”

Police arrived at the scene and found Paone positioned between two buildings. Officers took positions at varying distances and instructed Paone to drop the weapon. Paone initially complied and dropped the BB gun, but when officers moved closer, he appeared to bend toward the weapon. Fearing for their safety, and believing the object was a real firearm, Officer Doe 1 fired three shots at Paone, who then briefly rose to reach for the weapon, prompting additional shots from Officer Doe 1 and other officers.

Following the incident, Paone was transported to the hospital, where he was pronounced dead from multiple gunshot wounds.

Legal Standard for Use of Deadly Force
The central issue was whether the officers’ use of deadly force violated the Fourth Amendment, which protects against unreasonable searches and seizures, including excessive force. The court applied the Graham v. Connor standard, which assesses the reasonableness of force based on the circumstances at the time.

Judge Wolson found no factual dispute that would allow a reasonable juror to conclude the officers violated Paone’s rights. Citing Lamont v. New Jersey, Judge Wolson emphasized that officers must prioritize their safety when faced with a lethal threat. Paone’s actions of raising and pointing a weapon—whether real or not—created an objectively reasonable belief that deadly force was warranted.

The Mental Health Factor
The plaintiff argued that Paone’s mental illness should have influenced the officers’ response. Judge Wolson acknowledged Paone’s mental health issues but clarified that mental illness does not eliminate the possibility that an individual can pose a deadly threat in a high-stress situation.

Judge Wolson explained, the case was not about Paone’s mental health or whether he had a toy gun, but whether the officers’ use of deadly force was justified. He noted that Paone’s mental illness did not grant him additional constitutional protection or remove the potential danger posed by his actions. The Constitution does not require officers to “gamble with their lives” in situations involving mental illness, especially when facing a perceived deadly threat.

Dismissal of Remaining Claims
Having determined that the police officers’ use of deadly force was justified, Judge Wolson dismissed several remaining claims. The municipal liability claim against Plymouth Township failed because there was no underlying constitutional violation. Under Section 1983, a municipality can only be held liable if a constitutional violation occurred.

The state-law claims—survival and wrongful death, assault and battery, negligent infliction of emotional distress, and intentional infliction of emotional distress—were also dismissed. The survival and wrongful death claims failed as the officers’ actions were deemed reasonable. The assault and battery claim was dismissed because the use of force was justified. Similarly, the emotional distress claims were dismissed for lack of an underlying tort or extreme conduct.

Implications and Conclusion 
The court’s decision in this case highlights the critical balance law enforcement must strike when responding to high-risk situations, especially those involving individuals with mental health disorders. The case reinforces that police officers must act based on their assessment of an immediate threat, without the benefit of time for detailed evaluations. While mental illness is an important factor, it does not negate the potential danger posed by an individual holding a weapon.

This ruling emphasizes the need to protect both the constitutional rights of individuals and the safety of law enforcement officers. The court’s decision ensures that officers are able to make split-second decisions in the face of perceived threats, with a focus on their safety and the safety of others. 

The case is now being appealed to the U.S. Court of Appeals for the Third Circuit, where it may further shape legal standards surrounding police use of force in similar encounters

*Connor is a member of Public Entity & Civil Rights Litigation Practice Group and works in our Philadelphia, Pennsylvania, office. 

 

Defense Digest, Vol. 31, No. 1, March 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

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