                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 11-1948
                                   ___________

                      EDWARD BROWN; CAROL BROWN,
                                            Appellants

                                         v.

                       DARRIN PAUL CWYNAR;
              SHENANGO TOWNSHIP POLICE DEPARTMENT;
           BRIAN CUSCINO; NEW CASTLE POLICE DEPARTMENT;
              SHENANGO TOWNSHIP; CITY OF NEW CASTLE
                       _______________________

                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                         D.C. Civil Action No. 08-cv-1224
                           (Honorable Joy Flowers Conti)
                                 ______________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  April 17, 2012

              Before: SCIRICA, AMBRO and SMITH, Circuit Judges.

                                (Filed: June 7, 2012)
                                _________________

                            OPINION OF THE COURT
                               _________________

SCIRICA, Circuit Judge.

      Edward Brown brought an action under 42 U.S.C. § 1983 against New Castle City

Police Officer Brian Cuscino, contending he used excessive force when he released a
taser gun into Brown’s back during an arrest. The court granted summary judgment to

Officer Cuscino on the merits, concluding the force he applied was reasonable, as well as

on the basis of qualified immunity. We will affirm.

                                            I.

       On January 24, 2007, Edward Brown, a seventy-three year old man, drove to the

Pearle Vision (“Pearle”) eyewear store in Shenango Township, Pennsylvania. Pearle is

located in the Lawrence Village Plaza. Brown had an 11:30 a.m. appointment for an eye

examination, after which he planned to purchase a pair of prescription eyeglasses. The

examination began with a dilation of Brown’s eyes. Next, Brown was instructed to wait

for twenty minutes. During this time, a receptionist asked Brown for a $25 co-pay.

Brown argued he owed only $10 and would not pay until his examination was complete.

The receptionist showed Brown where, on his insurance card, it stated his co-pay was

$25. She also told him he could wait to pay, but he would not receive his prescription

until he did so.

       After the eye examination was over, Brown asked for his prescription. The

receptionist reiterated she would not release it until Brown rendered the co-pay. Brown

refused. Pearle’s office manager, Barb Wojtowiz, intervened. She informed Brown that,

according to his insurance policy, he was required to submit his co-pays at the time

services are provided. Brown responded that Pearle’s employees “were making [him]

mad” and he only wanted his prescription so he could “get a price on glasses.” Wojtowiz

instructed a salesperson, Linda Robinson, to quote Brown a price for the glasses. Brown

responded, “That’s all I wanted, I have to threaten you people to get what I want.” As

                                            2
Robinson was assisting Brown, he became agitated. He leaned forward and said, “How

would you like if it I spit in your face?” Wojtowiz called 911 and reported a disruptive

customer in the store.

       In response to the emergency call, the Lawrence Emergency Operations Center

sent Officer Cwynar of the Shenango Township Police Department to Pearle. When he

arrived, Brown was leaving the store. Employees pointed to Brown through the glass

window, indicating he was the subject of the 911 call. Robinson told Officer Cwynar,

“That’s him, that’s him.” She also related that Brown had gotten “irate” in the store and

threatened to spit in her face.

       Officer Cwynar followed Brown as he walked to his vehicle. Multiple times, he

called out for Brown to stop. He explained he was there to investigate a disturbance at

Pearle and that Brown needed to answer a few questions. Brown proceeded to his car,

stating, “I don’t have to do what you say, I don’t have to talk to you.” He opened the

driver’s side door and got inside. Officer Cwynar walked to the window of the car and

demanded that Brown give him the keys. He told Brown he was not free to leave. But

Brown refused to comply and reached for the gear shift. At this point, Cwynar called for

back-up, pushed Brown across the front seat of the vehicle, and climbed inside. He

warned Brown that he would tase him if he did not cooperate. Brown continued to

struggle. Officer Cwynar applied a taser gun twice to Brown’s left tricep. This did not

subdue him and he still resisted handing over the keys.

       Trooper William Phillips of the Pennsylvania State Police arrived as Brown and

Officer Cwynar were struggling in the front seat of the car. He witnessed Brown

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“[t]hrashing about in the car,” kicking “[o]ut of control,” and refusing to respond to

Officer Cwynar’s commands. Trooper Phillips attempted unsuccessfully to remove the

car keys from Brown’s hands and to pull Brown out of the driver’s side of the car.

      Officer Cuscino, with the New Castle Police Department, was the next to arrive.

He had received two calls from the Lawrence Emergency Operations Center reporting,

first, that a Shenango Township officer needed assistance at the Lawrence Village Plaza,

and second, that the officer was fighting with someone. When Officer Cuscino arrived, he

observed that Brown was struggling with officers in a car. As he approached the vehicle,

he saw Brown on the ground, lying on top of both his hands. Trooper Phillips told

Cuscino “they had a problem in Pearle Vision Center and Officer Cwynar tried to arrest

[Brown] and he resisted.” Officer Cwynar related he had already tased Brown, but Brown

continued to act unruly. The officers stood around Brown and instructed him to release

his hands. Officer Cuscino warned him that, if he did not comply, he would be tased.

Despite multiple warnings, Brown refused to release his hands. Officer Cuscino then

applied a taser gun in drive-stun mode to Brown’s upper back. This caused him to let his

hands go free, and he was placed in handcuffs and transported to the Shenango police

station. The next day, Brown was charged with one count of resisting arrest and two

counts of disorderly conduct. Fourteen months later, he entered the Lawrence County

Alternative Rehabilitative Disposition (“ARD”) program and his charges were dropped.

      On September 4, 2008, Brown and his wife, Carol, filed a § 1983 complaint in the

District Court for the Western District of Pennsylvania. They named Officers Cwynar

and Cuscino, the Shenango Township Police Department, and the New Castle Police

                                            4
Department, as defendants. Brown asserted federal constitutional claims arising under the

First, Fourth, and Fifth Amendments, and his wife asserted a state law claim for loss of

consortium. In December 2008, Brown amended the complaint to add Shenango

Township and New Castle City as defendants. He also added claims for assault and

battery.

       Officer Cuscino, the New Castle Police Department, and New Castle City filed a

joint motion to dismiss. On April 3, 2009, the court granted the motion in part. It

dismissed all claims against New Castle Police Department and New Castle City, as well

as all claims against Officer Cuscino arising under the First Amendment and the Equal

Protection Clause. The court accepted a stipulation of dismissal for Officer Cwynar, the

Shenango Township Police Department, and Shenango Township, in light of settlement

agreements they entered into with Brown. This left Officer Cuscino as the sole remaining

defendant and excessive use of force as the sole remaining federal claim.

       On May 10, 2010, Officer Cuscino moved for summary judgment. He claimed he

had deployed a reasonable degree of force against Brown in light of the circumstances,

and in any case was entitled to qualified immunity. The District Court granted Officer

Cuscino’s motion on both grounds. It declined to exercise supplemental jurisdiction over

the state law claims and dismissed them without prejudice. Brown filed this appeal.

                                           II.

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367, and

42 U.S.C. § 1983. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise

plenary review over a district court’s grant of summary judgment, applying the same test

                                            5
as the district court. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir. 2001). Namely,

under Fed. R. Civ. P. 56, we ask whether the “materials in the record, including

depositions, documents . . . admissions, interrogatory answers, or other materials” show

“there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a) & (c)(1)(A). “Facts that could affect the

outcome are ‘material facts,’ and a dispute about a material fact is ‘genuine’ if the

evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving

party.” Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011). Like the District Court,

we conduct our analysis by “view[ing] the facts in the light most favorable to the

nonmoving party and draw[ing] all inferences in that party’s favor.” Saldana, 260 F.3d at

232 (internal quotation marks and citation omitted).

                                           III.

       Summary judgment to Officer Cuscino was warranted for two reasons. First, the

evidence considered in the light most favorable to Brown shows “no genuine dispute as

to any material fact” regarding whether Officer Cuscino used excessive force. The

evidence shows the force he deployed was proportionate and reasonable. Second,

summary judgment is warranted because Officer Cuscino is entitled to qualified

immunity.

       As for the merits, a plaintiff may prevail on an excessive force claim if he can

show that a seizure occurred and that the seizure “was unreasonable under the

circumstances.” Lamont, 637 F.3d at 183. In Graham v. Connor, the Supreme Court

instructed that “[d]etermining whether the force used to effect a particular seizure is

                                            6
‘reasonable’ . . . requires . . . careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” 490 U.S. 386, 396 (1989). The

inquiry is an objective one. Id. at 397. Additionally, “[r]easonableness is to be evaluated

from the perspective of a reasonable officer on the scene, rather than with the 20/20

vision of hindsight.” Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir.

2004) (internal quotation marks and citation omitted).

       Brown was “seized” by Officer Cuscino. A seizure occurs when a suspect

“submits to the police’s show of authority or the police subject him to some degree of

physical force.” Abraham v. Raso, 183 F.3d 279, 291 (3d Cir. 1999). As for whether the

seizure was reasonable, the uncontested facts in the record 1 demonstrate that Officer

Cuscino possessed the following knowledge at the time he fired the taser: (1) he had been

informed by two dispatch calls that a police officer was in need of assistance at Lawrence

Village Plaza and was fighting with someone; (2) when he arrived, he personally


1
  A word, briefly, about the uncontested facts upon which we base our analysis. The
parties filed a Combined Statement of Facts with the District Court in which each set
forth a host of contentions, citing to materials in the record. See APP 87-102 (Cuscino’s
statement of facts); 197-201 (Brown’s statement of facts). We identify the facts that are
undisputed by isolating the contentions in each party’s filing that the other did not deny.
As the District Court noted, Brown asserted that “most of the facts defendant set forth [in
its statement] . . . were 1) not legally essential for the court to rule on the Motion; and 2)
immaterial with respect to the Motion as a matter of law.” APP 8 n.4. But Brown never
denied the veracity of Cuscino’s contentions that he received a dispatch call from LEOC
to report to the scene, observed Brown struggling with officers in his car, was informed
by Officer Cwynar about what had transpired prior to his arrival, and observed Brown
resisting arrest on the ground. See APP 197-201.
                                              7
observed Brown scuffling with police officers in a car; (3) he was informed by Officer

Cwynar that Brown had already been tased but continued to act uncooperatively; and (4)

he observed Brown lying on the ground and refusing to release his hands from beneath

his body. Together, this information supplied Officer Cuscino a reasonable basis to

conclude that Brown would continue to resist arrest and to act belligerently towards the

police were he not subdued. Moreover, Officer Cuscino personally warned Brown he

would be tased if he did not release his hands, and Brown was undeterred. Cf. Bryan v.

MacPherson, 630 F.3d 805, 831 (9th Cir. 2010) (noting that an officer’s use of force was

unreasonable when he did not provide a warning before deploying a taser). The amount

of force applied by Officer Cuscino was proportional to the threat he perceived, and was

therefore reasonable.

       Furthermore, Officer Cuscino is shielded by the doctrine of qualified immunity.

Qualified immunity is an affirmative defense available to government officials sued in

their personal capacities. The Supreme Court has directed courts to address it at the

“earliest possible stage in the litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991). For

qualified immunity to attach, an official must demonstrate his conduct was objectively

reasonable. Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). There are two prongs to

this inquiry: first, whether the plaintiff’s constitutional or statutory rights were in fact

violated; second, whether it would have been clear to a reasonable officer that the

conduct was unlawful in light of “clearly established” law. Saucier v. Katz, 533 U.S. 194,

201-02 (2001). If an official can show at least one prong was not met, immunity attaches.



                                             8
Pearson v. Callahan, 555 U.S. 223 (2009); Reedy v. Evanson, 615 F.3d 197, 224 n.36 (3d

Cir. 2010).

       Even assuming prong one is satisfied and Brown’s Fourth Amendment rights were

violated, qualified immunity would attach because not “every ‘reasonable official’” in

Officer Cuscino’s shoes would have understood “beyond debate” that tasering Brown

constituted excessive force. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). At the

time of the events in question, multiple courts of appeals had approved of the use of taser

guns to subdue individuals who resist arrest or refuse to comply with police orders. See

Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) (holding the use of a taser to

“effectuate [an] arrest” was reasonable when the individual was “hostile, belligerent, and

uncooperative”); Hinton v. City of Elwood, 997 F.2d 774, 781 (10th Cir. 1993)

(approving the use a stun gun to overcome a suspect’s resistance of arrest); Russo v. City

of Cincinnati, 953 F.2d 1036 (6th Cir. 1992) (holding it was reasonable to use a taser to

subdue a paranoid schizophrenic who locked himself in an apartment and disobeyed

police orders to open the door and drop his weapons); cf. Giles v. Kearney, 571 F.3d 318,

329 (3d Cir. 2009) (holding the use of a capstun was “proportionate” when a prison

inmate “repeatedly refus[ed] to obey orders”). Meanwhile, no decision by the Supreme

Court, this Circuit, or by a majority of other federal circuits had foreclosed the use of

taser guns when suspects resist arrest in an aggressive and combative manner. See Hoyt v.

Cooks, 672 F.3d 972, 977 (11th Cir. 2012) (holding qualified immunity attached when, in

2007, an officer tased a man who resisted arrest by crawling and thrashing because “no

precedent . . . ha[d] staked out a bright line”). A reasonable officer in Cuscino’s shoes at

                                             9
the time in question would not have perceived federal law to preclude deploying a taser

to effectuate Brown’s arrest.

                                           IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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