                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-5-2001

Bennett v. Murphy
Precedential or Non-Precedential:

Docket 00-2667




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Recommended Citation
"Bennett v. Murphy" (2001). 2001 Decisions. Paper 282.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/282


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Filed December 5, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2667

SALLY BENNETT, ADMINISTRATRIX OF
THE ESTATE OF DAVID BENNETT

v.

FRANCIS J. MURPHY, III, Individually and as a
Pennsylvania State Police Officer of the Commonwealth of
Pennsylvania; MARK F. NOWAKOWSKI, Individually and
in his capacity as a Corporal of the Pennsylvania State
Police of the Commonwealth of Pennsylvania

       Francis J. Murphy, III,
       Appellant

Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 94-cv-00214)
District Judge: Honorable Robert J. Cindrich

Submitted Under Third Circuit LAR 34.1(a)
September 10, 2001

Before: MANSMANN, RENDELL and ALDISERT,
Circuit Judges.

(Filed December 5, 2001)
       Vincent A. Coppola, Esquire
       Pribanic & Pribanic
       513 Court Place
       First Floor
       Pittsburgh, PA 15219

       Victor H. Pribanic, Esquire
       Pribanic & Pribanic
       1735 Lincoln Way
       White Oak, PA 15131

        Counsel for Appellee

       D. Michael Fisher
        Attorney General
       John G. Knorr, III
        Chief Deputy Attorney General
        Chief, Appellate Litigation Section
       Kemal A. Mericli
        Senior Deputy Attorney General
       Office of Attorney General
        of Pennsylvania
       Department of Justice
       Strawberry Square
       15th Floor
       Harrisburg, PA 17120

        Counsel for Appellant

OPINION OF THE COURT

MANSMANN, Circuit Judge:

In this Section 1983 civil rights action alleging use of
excessive force by a police officer in violation of the Fourth
Amendment, state trooper Francis J. Murphy, III, appeals
from the District Court's denial of his motion for summary
judgment based on qualified immunity. In its recent
decision in Saucier v. Katz, 531 U.S. 991, 121 S.Ct. 2151
(2001), the Supreme Court articulated a new framework for
analyzing qualified immunity claims which is applicable
here: the question of whether an officer is entitled to
qualified immunity is distinct from whether he used

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unreasonable force. Because the District Court did not have
the benefit of this framework when it considered Murphy's
entitlement to qualified immunity, we will vacate the order
of the District Court and remand this matter for
reconsideration in accordance with the principles
announced in Saucier.

I.

This case originated in a 1994 prolonged armed standoff
between David Bennett and police officers in a field near an
apartment complex in Greensburg, Pennsylvania. What
began as a domestic dispute culminated in Bennett's being
fatally shot by Trooper Murphy. Sally Bennett, David
Bennett's mother and the administratrix of his estate, filed
this action alleging violation of 42 U.S.C. S 1983.1 The
matter went to trial in September 1996 and the jury
returned a verdict in favor of Murphy. One year later,
Bennett filed a motion for a new trial pursuant to Fed. R.
Civ. P. 60, alleging that information in Murphy's personnel
records relevant to his credibility had been withheld from
Bennet during discovery. Because it was "satisfied that
Bennett was prejudiced by being denied the opportunity to
consider her use of this important information," the District
Court found that Bennett was entitled to a new trial.
Bennett v. Murphy, No. 94-cv-00214, mem. order at 14
(W.D. Pa. Jan. 7, 2000). In granting Bennett's motion, the
District Court rejected Murphy's argument that a new trial
was precluded by Murphy's entitlement to qualified
immunity: "We must recognize . . . that the factfinding
process in a case of deadly force is usually more
complicated than that of an alleged search or seizure. We
find that the facts from which we would make such a ruling
must first be determined by a jury." Id. at 6.

Prior to the trial, Murphy filed a motion for
reconsideration and sought summary judgment based on
_________________________________________________________________

1. Originally Bennett, on behalf of herself and her son's estate, made
numerous state and federal law claims against Murphy and Corporal
Mark Nowakowski of the Pennsylvania State Police. All claims except
those of the estate against Murphy alleging violation of Section 1983
were ultimately dropped or dismissed.

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his assertion of qualified immunity. The District Court
denied these motions. Noting that it had "informally and
unfavorably addressed" Murphy's entitlement to qualified
immunity in its January 7th order granting Bennett's
motion for a new trial, the District Court addressed the
issue of qualified immunity at length. Bennett v. Murphy,
127 F. Supp.2d 689, 690 (W.D. Pa. 2001). Concluding
again that Murphy was not entitled to qualified immunity,
the District Court recounted the facts surrounding the
shooting in the light most favorable to Bennett. 2 The Court
then asked whether, given those facts, it was "indisputably
reasonable as a matter of law" for Murphy to have used
deadly force against Bennett. Id. at 690. The District Court
was unable to answer this question in the affirmative and
concluded that the determination was best left to the jury:
"[T]here is no clearly defined standard of reasonableness for
the court to apply and . . . such a standard should emerge
from the conscience of the community, not the mind of a
single judge." Id. at 699. The District Court took the
position that, as a general rule, qualified immunity is
unavailable in cases involving allegations of excessive force:
_________________________________________________________________

2. The District Court, "ignoring evidentiary disputes," summarized the
facts as follows:

       The state police were called to the courtyard of a group of
apartment
       buildings on the evening of January 4, 1994 to confront a man,
       David Bennett, who they soon learned was distraught at being
       unable to see his girlfriend. He was armed with a single shot
       shotgun that he held vertically in front of him, with the barrel
       pointed up at his head, and the stock facing down. He was "very
       deliberate in holding [the gun] toward himself or in the air," and
did
       not point the gun at anyone, including state troopers. . . . He
stated
       that he wanted to kill himself. . . . As the troopers took up
positions
       surrounding him in the open area between the apartment buildings,
       he became agitated and began moving toward a group of them, but
       stopped for perhaps four seconds before he was shot.. . . Murphy
       was positioned 80 yards behind Bennett when he fired. Almost an
       hour passed between the time the state troopers first arrived on
the
       scene, and the time Bennet was shot.

        Bennett admittedly was angry and defiant in the face of a group
       of determined, armed state troopers.

Id. at 690-691. (Citations to the record omitted.)
4
       [E]xcessive force cases are typically riven with factual
       disputes about key events. Even where they are not,
       the decisive question is one of the reasonableness of
       the officer's conduct in light of all the circumstances.
       . . . [T]his is a quintessential jury question.

Id. at 694. The District Court concluded that the availability
of qualified immunity turned on Murphy's credibility:

       [I]t is only from the mind and mouth of Murphy that
       we can supply the crucial "facts and circumstances
       confronting" our hypothetical, objectively reasonable
       officer. It is only from the testimony of Murphy that we
       can gather the information which he maintains creates
       the justification for the use of deadly force -- i.e., the
       belief that existed in his own mind that his fellow
       officers were in imminent danger of death or serious
       bodily injury at the hands of Bennett.

Id. at 692. Because this credibility determination could be
made only by a jury, the District Court reasoned that
Murphy was not entitled to summary judgment on the
basis of qualified immunity. Murphy's motion was denied
and this timely appeal followed.

Because this appeal involves solely a question of law and
does not turn on disputed issues of fact, we have
jurisdiction pursuant to the collateral order doctrine under
28 U.S.C. S 1291.3 See Johnson v. Jones, 515 U.S. 304, 313
(1995); Mitchell v. Forsyth, 472 U.S. 511 (1985).

II.

While this appeal was pending, the Supreme Court
issued its decision in Saucier v. Katz, 531 U.S. 991, 121
S.Ct. 2151 (2001), clarifying the analysis to be undertaken
by district courts and courts of appeals considering claims
of qualified immunity in cases alleging excessive use of force.4
_________________________________________________________________

3. The District Court did not identify facts in dispute, nor does this
appeal require that we evaluate the facts. Murphy's contention on appeal
is that even if all controverted facts are resolved in favor of Bennett,
his
actions were objectively legally reasonable.

4. The decision in Saucier addressed the qualified immunity defense in
the Bivens context. The analytical framework outlined in Saucier is,

                               5
In Saucier, the Court held that the Court of Appeals for the
Ninth Circuit erred when it adopted an approach to
qualified immunity which was very similar to the one taken
by the District Court in this case: "[T]he ruling on qualified
immunity requires an analysis not susceptible of fusion
with the question whether unreasonable force was used
. . . ." 121 S. Ct. at 2153. Unless the qualified immunity
inquiry is undertaken separately from the constitutional
inquiry, it will "become superfluous or duplicative when
excessive force is alleged." Id. at 2155.

The Supreme Court stressed that the qualified immunity
question must be resolved "at the earliest possible stage in
the litigation." Id. at 2156 (quoting Hunter v. Bryant, 502
U.S. 224, 227 (1991) (per curiam)). "Qualified immunity is
`an entitlement not to stand trial or face the other burdens
of litigation.' " Id. (quoting Mitchell v. Forsyth, 472 U.S. at
526 (1985). "The privilege is `an immunity from suit rather
than a mere defense to liability, and like an absolute
immunity, it is effectively lost if a case is erroneously
permitted to go to trial.' " Id.

After Saucier it is clear that claims of qualified immunity
are to be evaluated using a two-step process. First, the
court must determine whether the facts, taken in the light
most favorable to the plaintiff, show a constitutional
violation. If the plaintiff fails to make out a constitutional
violation, the qualified immunity inquiry is at an end; the
officer is entitled to immunity. In this case it is clear that
Bennett's submissions, viewed in the light most favorable to
her, do make out a constitutional violation. In Graham v.
Connor, 490 U.S. 386 (1989), the Supreme Court held that
the use of force contravenes the Fourth Amendment if it is
excessive under objective standards of reasonableness. If,
as the plaintiff 's evidence suggested, David Bennett had
stopped advancing and did not pose a threat to anyone but
himself, the force used against him, i.e. deadly force, was
objectively excessive.
_________________________________________________________________

however, applicable to cases under Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and to those
brought pursuant to Section 1983. Wilson v. Layne, 526 U.S. 603, 609
(1999).

                               6
Once it is determined that evidence of a constitutional
violation has been adduced, courts evaluating a qualified
immunity claim move to the second step of the analysis to
determine whether the constitutional right was clearly
established. That is, in the factual scenario established by
the plaintiff, would a reasonable officer have understood
that his actions were prohibited? The focus in this step is
solely upon the law. If it would not have been clear to a
reasonable officer what the law required under the facts
alleged, he is entitled to qualified immunity. If the
requirements of the law would have been clear, the officer
must stand trial.

Saucier's holding regarding the availability of qualified
immunity at the summary judgment stage does not mean
that an officer is precluded from arguing that he reasonably
perceived the facts to be different from those alleged by the
plaintiff. An officer may still contend that he reasonably,
but mistakenly, believed that his use of force was justified
by the circumstances as he perceived them; this
contention, however, must be considered at trial. As the
District Court noted:

       [E]ven where the officer must stand trial, he still
       benefits from the favorable law precluding
       consideration of intent or motive, use of hindsight in
       judging tense, unpredictable situations, and allowances
       for mistaken judgments. . . .

Bennett, 127 F. Supp. at 694.

III.

The decision in Saucier clarified what was not apparent
before -- that the immunity analysis is distinct from the
merits of the excessive force claim. We have concluded that
the first prong of the two-step Saucier test is satisfied.
Given the District Court's thorough familiarity with all of
the aspects of this matter, it is appropriate that it be given
the first opportunity to apply the second part of the Saucier
analysis. We will, therefore, vacate the order of the District
Court and remand this matter for further consideration.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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