                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 18-3283
                                   _____________

CALISIA KELLEY; JOHNNIE MAE KELLEY, Co-Administrators of the ESTATE OF
                    BRUCE KELLEY JR., deceased,
                              Appellant

                                          v.

 BRIAN O’MALLEY, in both his Official and Individual Capacities as Sergeant for the
 Allegheny County Port Authority; DOMINIC RIVOTTI, in both Official and Individual
Capacities as Officer for the Allegheny County Port Authority; JOHN DOE #1, POLICE
OFFICER, in his Official and Individual Capacities; JOHN DOE #2 POLICE OFFICER,
    in both his Official and Individual Capacities; JOHN DOE #3 SUPERVISOR OF
  O'MALLEY, RIVOTTI and JOHN DOE POLICE OFFICERS, in his/her Official and
  Individual Capacities; ALLEGHENY COUNTY PORT AUTHORITY; MATTHEW
PORTER, in his Official and Individual Capacities as Chief of the Allegheny County Port
    Authority Police; COUNTY OF ALLEGHENY; ALLEGHENY COUNTY PORT
                         AUTHORITY POLICE DEPARTMENT
                                    _______________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                               (D.C. No. 2-17-cv-01599)
                         District Judge: Hon. Nora B. Fischer
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 13, 2019

          Before: CHAGARES, JORDAN, and RESTREPO, Circuit Judges.

                             (Filed: September 24, 2019)
                                  _______________
                                        OPINION ∗
                                     _______________

JORDAN, Circuit Judge.

       Calisia Kelley and Johnnie Mae Kelley, the sister and mother of Bruce Kelley, Jr.

and co-administrators of his estate, appeal from the District Court’s order dismissing their

complaint and denying them leave to amend. For the reasons that follow, we will vacate

and remand in part and affirm in part.

I.     BACKGROUND 1

       On a Sunday afternoon in January 2016, Bruce Kelley, Jr. was with his father in a

park gazebo when two Allegheny County Port Authority police officers approached and

accused the men of violating open container laws. While the officers were occupied with

his father, Kelley, Jr. walked away from the gazebo. The officers called for back-up.

       While walking away from the officers, Kelley, Jr. pulled out a knife, which he had

on his person to protect himself because he was homeless. He did not threaten the

officers with the knife or make any sudden movements. Instead, he walked away from

the officers “at a slow pace[,]” passing bystanders out in their yards. (App. Vol. II at

11 ¶ 36.)

       The police – totaling fourteen officers at this point – called for the Port Authority

K-9 Unit. Eventually, the fourteen officers “cornered” Kelley, Jr. in front of a house,


       ∗
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
       1
        The following recitation is drawn from the complaint, the allegations of which we
must, at this stage, accept as true. See infra note 2.
                                              2
surrounding him with their guns drawn. (App. Vol. I at 11 ¶ 38.) The officers ordered

Kelley, Jr. to drop his knife, but he refused to do so.

       The K-9 Unit, consisting of Sergeant Brian O’Malley, Officer Dominic Rivotti,

and a German Shepherd, arrived on the scene after Kelley, Jr. had been cornered.

Sergeant O’Malley warned Kelley, Jr. that he would “sic” the German Shepherd on him

if he did not drop the knife. (App. Vol. II at 11 ¶ 42.) Kelley, Jr. still refused to do so

and told Sergeant O’Malley he would stab the dog if it were released on him. Sergeant

O’Malley nevertheless sent the dog at Kelley, Jr., who, as promised, stabbed the dog with

his knife. The K-9 Unit officers immediately opened fire on Kelley, Jr., shooting him

seven times – including twice in the back – and killing him.

       The Kelleys filed a complaint on Kelley, Jr.’s behalf under 42 U.S.C. § 1983,

asserting claims of excessive force in violation of the Fourth Amendment and, as to

certain Defendants, Monell liability. The District Court dismissed the complaint in its

entirety with prejudice. It reasoned, as relevant here, that the K-9 Unit officers acted in

an objectively reasonable manner and, therefore, they were entitled to qualified

immunity. Any amendment to the complaint would be futile, the Court concluded.

       The Kelleys now appeal.




                                              3
II.    DISCUSSION 2

       On appeal, the Kelleys argue that the District Court erred in dismissing the

excessive force claim against Sergeant O’Malley and Officer Rivotti and in denying leave

to amend the complaint. 3

       “Qualified immunity attaches when an official’s conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting White v.

Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)). In other words, officers are not entitled

to qualified immunity if “(1) they violated a federal statutory or constitutional right, and

(2) the unlawfulness of their conduct was ‘clearly established at the time.’” District of

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (citation omitted).

       The District Court concluded that the K-9 Unit officers were entitled to qualified



       2
          The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3).
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s
grant of a motion to dismiss de novo. James v. City of Wilkes-Barre, 700 F.3d 675, 679
(3d Cir. 2012). When reviewing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), we accept all well-pled factual allegations in the complaint as true
and construe them in the light most favorable to the nonmoving party. Foglia v. Renal
Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1 (3d Cir. 2014).
       3
         The Kelleys do not challenge the dismissal of the County of Allegheny as a
defendant. In addition, the Kelleys do not raise any argument in their opening brief as to
(1) the dismissal of the Allegheny County Port Authority Police Department; (2) the
dismissal of John Doe Police Officers #1 and #2; or (3) the dismissal of their Monell
claim against Matthew Porter, John Doe #3 Supervisor, the County of Allegheny, the
Allegheny County Port Authority, and the Allegheny County Port Authority Police
Department. Accordingly, any such arguments are forfeited, Colwell v. Rite Aid Corp.,
602 F.3d 495, 503 n.7 (3d Cir. 2010), and we will affirm the District Court’s decision as
to those claims and parties.
                                              4
immunity based on the first step of that inquiry, reasoning that the officers’ actions were

objectively reasonable under the circumstances and therefore did not violate Kelley, Jr.’s

Fourth Amendment rights. 4 The Kelleys contend that was error. 5 We agree.

       “To prevail on a Fourth Amendment excessive-force claim, a plaintiff must show

that a seizure occurred and that it was unreasonable under the circumstances.” Lamont v.

New Jersey, 637 F.3d 177, 182-83 (3d Cir. 2011). The use of deadly force is a seizure,

and it is unreasonable “unless the officer has good reason ‘to believe that the suspect

poses a significant threat of death or serious physical injury to the officer or others.’” Id.

at 183 (quoting Tennessee v. Garner, 471 U.S. 1, 3 (1985)).

       In Graham v. Connor, the Supreme Court explained that reasonableness is

addressed “from the perspective of a reasonable officer on the scene” and “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). Accepting as true the version of events as

pled in the complaint, and drawing all reasonable inferences in the Kelleys’ favor, a



       4
        Because the District Court concluded that no Fourth Amendment violation had
occurred, it did not reach the “clearly established” inquiry.
       5
         According to the Defendants, the Kelleys failed to challenge the District Court’s
determination that the officers were entitled to qualified immunity because the briefing
focuses only on whether the Defendants violated Kelley, Jr.’s Fourth Amendment rights.
That contention misses the mark, however, given that the District Court’s qualified
immunity determination was based entirely on its conclusion that no constitutional
violation occurred.
                                              5
reasonable jury could conclude that Sergeant O’Malley’s and Officer Rivotti’s actions

were not objectively reasonable. A review of the factors laid out in Graham shows why.

       First, Kelley, Jr. was approached by Port Authority Officers over a minor, non-

violent infraction – an open container violation, which Kelley, Jr., denies occurred .

Second, at the time of the shooting, he posed little immediate threat to the safety of the

officers or anyone else. When the K-9 Unit arrived, Kelley, Jr. was already facing

fourteen Port Authority officers, all with their guns drawn, and was cornered in front of a

house. The K-9 Unit added two more officers with guns and a trained attack dog.

Granted, Kelley, Jr. was in possession of a knife and refused to put it down, but there are

no allegations that he raised the knife, pointed it towards any officer or other person, or

threatened any person with it. Moreover, although he stabbed the dog that attacked

him – as he warned officers he would – that alone does not show that he posed a threat to

the life and safety of the officers or other people when he was shot. 6

       The third Graham factor, whether Kelley, Jr. was actively resisting arrest or

attempting to evade arrest by flight, is more complicated. It is true that he refused to

comply with the officers’ orders to drop his knife and that he stabbed the K-9 Unit dog.

But, at the time of the shooting, Kelley, Jr. was also incapable of fleeing from the police

or escaping ultimate capture, cornered as he was, and his use of the knife was in response

to the German Shepherd’s attack on him.



       6
        While none of the parties demeans the life of the police dog, neither does anyone
argue that the dog has the same status as, or should be treated as if it were, a human
police officer for purposes of assessing the propriety of deploying deadly force.
                                              6
       Critically here, there are fact questions about why the officers did not attempt to

use alternative, less lethal means of force before gun fire erupted. As alleged in the

complaint, when the K-9 Unit officers arrived, a sizable force of Port Authority officers

had effectively surrounded Kelley, Jr. in front of a house. He prolonged the standoff and,

no doubt, frustrated the police by refusing to put down his knife. Sergeant O’Malley,

however, without attempting to deescalate the situation, heightened tensions by

threatening to have the German Shepherd attack Kelley, Jr. The response was Kelley,

Jr.’s promise to stab the dog if it attacked him. Sergeant O’Malley unleashed the dog

anyway. When events unfolded exactly as Kelley, Jr. said, Sergeant O’Malley and

Officer Rivotti shot him seven times, without hesitation, twice in the back.

       That course of conduct is one that a rational jury could conclude was beyond the

bounds of reason. A jury could properly say, on these facts, that it was not at all

reasonable for officers to shoot someone who they have cornered and set an attack dog

on, when that person poses little threat to anyone, is vastly outnumbered by armed

officers, and is only defensively wielding a knife. In sum, the Kelleys have alleged

sufficient facts for a reasonable jury to conclude that Sergeant O’Malley’s and Officer

Rivotti’s actions were objectively unreasonable. Cf. Glenn v. Washington County, 673

F.3d 864, 870-79 (9th Cir. 2011) (concluding that factual disputes precluded the entry of

summary judgment on qualified immunity grounds, where police officers shot a man who

refused to put down his knife and “stood in the driveway several feet from the officers[,]”

had not committed a severe, if any, crime, did not attack officers or anyone else, and

alternative, less intrusive means of force might have been used).

                                             7
       The Defendants try to fend off that conclusion by saying that Kisela v. Hughes,

which “guided” the District Court’s analysis (App. Vol. I at 14), forecloses the Kelleys’

excessive force claim. We disagree. In Kisela, which came before the Supreme Court

after summary judgment, the police were called to investigate “a woman [who] was

hacking a tree with a kitchen knife.” 138 S. Ct. at 1151. The police ultimately shot the

woman through a chain-link fence. Id. At the time of the shooting, the woman “was

holding a large kitchen knife, had taken steps toward another woman standing nearby,

and had refused to drop the knife after at least two commands to do so.” Id. at 1150.

Here, however, there are no allegations that Kelley, Jr. moved in a threatening manner

towards the officers or anyone else, nor that the officers were separated from, and thus

unable to reach, Kelley, Jr. because of a chain-link fence. Apart from those important

factual differences, in Kisela, the Supreme Court did not conclude that the officer’s

actions were reasonable. See id. at 1152 (“Here, the Court need not, and does not, decide

whether Kisela violated the Fourth Amendment when he used deadly force against [the

woman].”). Instead, the case turned on whether the officer’s actions violated the

plaintiff’s rights under clearly established law. Id. at 1152-54. Kisela certainly does not

foreclose the argument that the K-9 Unit officers in this case violated Kelley, Jr.’s

constitutional right to be free from excessive force.




                                              8
       Accordingly, the District Court erred in dismissing the Kelleys’ excessive force

claim against Sergeant O’Malley and Officer Rivotti on the ground that, as a matter of

law, the officers actions were objectively reasonable. 7

III.   CONCLUSION

       For the foregoing reasons, we will vacate the District Court’s order dismissing the

complaint, insofar as the order applies to Sergeant O’Malley and Officer Rivotti, and will

remand for further proceedings as to the excessive force claim against those defendants.

We will affirm the dismissal of the County of Allegheny, the Allegheny County Port

Authority Police Department, and John Doe Police Officers #1 and #2 as defendants, as

well as the dismissal of Count II of the complaint.




       7
         In light of our conclusion here, we need not address the Kelleys’ alternative
argument that the District Court erred in denying leave to amend the complaint.
Moreover, arguments abandoned in the course of this appeal, see supra note 3, cannot be
recovered through amendments to the complaint after remand. See United States v.
Morris, 259 F.3d 894, 898 (7th Cir. 2001) (“[P]arties cannot use the accident of remand
as an opportunity to reopen waived issues.”).
       We also express no view on the question of whether the officers’ actions violated
Kelley, Jr.’s Fourth Amendment rights under clearly established federal law at the time of
the shooting. The District Court did not address that question in the first instance, nor has
it been meaningfully addressed by the parties on appeal.
                                              9
