CLD-165                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 19-3160
                                      ___________

                                     AZIZ SALAAM,
                                               Appellant

                                             v.

       P/O TRAVIS WOLFE; P/O BARRY DELAGOL, individually and in their
            official capacity as Police Officers for the City of Philadelphia;
                               CITY OF PHILADELPHIA
                      ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2-14-cv-02055)
                      District Judge: Honorable Berle M. Schiller
                      ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    April 16, 2020
              Before: JORDAN, KRAUSE, and MATEY, Circuit Judges

                              (Opinion filed: April 29, 2020)
                                       _________

                                        OPINION *
                                        _________

PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Pro se appellant Aziz Salaam appeals from the District Court’s entry of summary

judgment in favor of defendants. Because the appeal fails to present a substantial

question, we will summarily affirm. See 3d Cir. I.O.P. 10.6.

       Salaam brought this action pursuant to 42 U.S.C. § 1983 against Philadelphia

police officers Travis Wolfe and Barry Delagol, as well as the City of Philadelphia.

Salaam alleged that Wolfe and Delagol used excessive force against him in violation of

his Fourth and Fourteenth Amendment rights. He also brought state law claims for

battery, intentional infliction of emotional distress, and negligent infliction of emotional

distress. The District Court appointed counsel, dismissed the claims against the City,

and, after discovery, entered summary judgment in favor of the defendant officers,

concluding that their use of force was reasonable as a matter of law under the Fourth

Amendment and that the state law claims were barred by Pennsylvania’s Political

Subdivision Tort Claims Act (PSTCA). This appeal ensued.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over a grant of summary judgment. See Groman v. Township of Manalapan, 47 F.3d

628, 633 (3d Cir. 1995). Summary judgment is proper where, viewing the evidence in

the light most favorable to the nonmoving party and drawing all inferences in favor of

that party, there is no genuine issue of material fact and the moving party is entitled to




                                              2
judgment as a matter of law. Fed. R. Civ. P. 56(a); Kaucher v. County of Bucks, 455

F.3d 418, 422-23 (3d Cir. 2006).1

       In evaluating Salaam’s excessive force claims, we determine whether a

constitutional violation has occurred using the Fourth Amendment’s objective

reasonableness test. See Graham v. Connor, 490 U.S. 386, 395, 397 (1989).2 This is a

“highly individualized and fact specific” inquiry, in which we examine the totality of the

circumstances confronting the officer. Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir.

2015). In particular, we consider (1) the severity of the crime at issue; (2) whether the

suspect poses an immediate threat to the safety of officers or others; and (3) whether the

suspect is actively resisting arrest or attempting to flee. Graham, 490 U.S. at 396. We

must not judge the reasonableness of the police officer’s conduct “with the 20/20 vision

of hindsight”; rather, we must consider that police officers make “split-second judgments




1
  To the extent that Salaam seeks to appeal the District Court’s prior order granting the
City of Philadelphia’s motion to dismiss for failure to state a claim for relief pursuant to
Fed. R. Civ. P. 12(b)(6), we exercise plenary review, see Santiago v. Warminster Twp.,
629 F.3d 121, 128 (3d Cir. 2010), and discern no error. The City cannot be held liable in
a § 1983 action on a theory of respondeat superior, and Salaam failed to allege facts
demonstrating the existence of a municipal policy or custom that led to the alleged
constitutional violations. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91
(1978); Mulholland v. Gov’t Cty. of Berks, 706 F.3d 227, 237 (3d Cir. 2013). Although
the dismissal was without prejudice, Salaam did not amend his complaint to address the
deficiencies within the time allowed for by the District Court.
2
 The District Court properly denied Salaam’s Fourteenth Amendment claim, as the
Supreme Court has made clear that an excessive force claim in this context is governed
solely by the Fourth Amendment. Graham, 490 U.S. at 395.
                                          3
– in circumstances that are tense, uncertain, and rapidly evolving – about the amount of

force that is necessary in a particular situation.” Id. at 396-97.

       We agree with the District Court that Salaam’s excessive force claims fails as a

matter of law.3 There were significant disputed facts surrounding the events giving rise

to the claims. However, as the District Court explained, even viewing the facts in the

light most favorable to Salaam, no reasonable jury could have concluded that the use of

force violated his constitutional rights. Those facts are summarized as follows.

       Salaam, while under the influence of PCP, rear-ended a car driven by Jamar

McRae in a residential neighborhood. Two Temple University security guards

immediately arrived on the accident scene on bikes. McRae started yelling at Salaam,

who heard a “pop” and “panicked.” Salaam got out of his car with a gun and fired ten

shots into the air, causing McRae and the security guards to run for cover. McRae called

911 and reported that the driver who hit his car had a gun and was firing it. Officers

Delagol and Wolfe responded separately to a police radio report of an active shooter. 4

Once on the scene, Delagol asked the security guards, who were bent down behind a car,


3
  Pursuant to this conclusion, the defendant officers were entitled to qualified immunity.
See Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (noting that “[q]ualified immunity
attaches when an official’s conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”).
4
  A minute later, a second radio call went out indicating “Shots fired at police. . . . Shots
fired at Temple police.” In their depositions, Delagol testified that he heard “shots fired”
and “assist the officer,” and Wolfe testified that what he heard led him to believe that an
officer “was being fired upon.” See District Court Docket (DCD) #46 at 75, 84.

                                              4
where “the guy with the gun” was. DCD#46 at 75. They pointed down the street, where

Delagol went, turned the corner, and saw Salaam walking away with a gun in his right

hand. 5 Delagol followed Salaam. When Wolfe arrived, he followed the officers 6

pursuing Salaam, who led them from the scene into a walkway surrounding some homes,

then turned left onto an alleyway behind the homes, and then left again into a walkway

on the other side of the homes. Delagol was yelling at Salaam to drop his gun; Salaam

did not hear him. As he approached the end of the walkway, Salaam heard what he

believed to be a police officer saying, more than once, “stop, freeze.”7 DCD #47-2 at

122-23. He put his arms up in the air, and, still holding the gun in his right hand, started

to turn towards his right to face the officer. Before Salaam turned halfway around, the

officers started shooting at him; Salaam dropped the gun and fell to the ground. Delagol

discharged his firearm four times, and Wolfe discharged his firearm five times, both in

rapid succession. Although disputed by the officers, Salaam maintains that several of the

shots were fired after he fell to the ground.

       With respect to Salaam’s claim that the officers’ initial use of deadly force was




5
 Salaam testified that, at the time of the incident, he was recovering from a foot injury
which affected his mobility.
6
 A third Philadelphia police officer, Eyleen Archie, responded to the scene and pursued
Salaam. She witnessed the events but did not use force against Salaam.
7
 Salaam testified that, up until that point, he did not know anyone was following him,
and that he never saw any police officer prior to being shot.
                                               5
unconstitutional, the undisputed facts show that the defendant officers acted reasonably

under the circumstances. Although they did not witness Salaam fire his gun, the officers

were aware that shots had been fired, and could reasonably conclude that Salaam, who

was walking away from the scene with a gun in his hand, was the shooter and that he was

attempting to flee. Even if Salaam did not hear the commands to drop his gun, the police

radio recording confirms that Delagol gave them. With the knowledge that Salaam failed

to comply with the instruction to stop and disarm, a reasonable officer could believe that

when Salaam started to turn towards them, with his gun in the leading-hand, that he

posed a serious risk of harm to them and those around them. See Kisela, 138 S. Ct. at

1152 (“Where the officer has probable cause to believe that the suspect poses a threat of

serious physical harm, either to the officer or to others, it is not constitutionally

unreasonable to prevent escape by using deadly force.”). Even assuming, as Salaam

maintains, that he did not even turn halfway before the shooting began, the defendants’

split-second decision to employ deadly force was objectively reasonable. Graham, 490

U.S. at 397; see Lamont v. New Jersey, 637 F.3d 177, 183 (3d Cir. 2011) (“Waiting [for

the suspect who moves toward a gun to draw it] could well prove fatal. Police officers do

not enter into a suicide pact when they take an oath to uphold the Constitution.”) (citing

Krueger v. Fuhr, 991 F.2d 435, 439 (8th Cir. 1993) (shooting was reasonable where,

during a foot chase of an armed assault suspect, the suspect suddenly reached into his

waistband despite having been ordered to freeze)).


                                               6
       Salaam also claimed that, assuming the initial use of force was objectively

reasonable, the officers’ continued use of force after he fell to the ground was unjustified.

Salaam maintains that he dropped the gun when he was first shot and that the officers

continued to fire several of the bullets after he was unarmed and on the ground. For

support, he relies on our decision in Lamont, where we determined that the defendant

state troopers were not entitled to qualified immunity for their continued use of deadly

force after the threat from the suspect was eliminated. 637 F.3d at 185. In that case, we

held that the troopers acted reasonably in their initial use of deadly force when the

suspect quickly pulled his right hand out of his waistband “as though he were drawing a

pistol.” Id. at 184. However, although the suspect’s “weaponless right hand was fully

visible immediately after the troopers began firing, the troopers continued to fire for

roughly 10 seconds, shooting a total of 39 rounds,” and “11 of the 18 bullets that struck

[the suspect] hit him from behind.” Id. We held that, under the circumstances, a

reasonable jury could determine that “the troopers improperly continued firing after [the

suspect] had turned away from them and no longer posed a threat.” Id. at 184-85.

       The facts in this case are materially different than those in Lamont and do not

create a triable issue for the jury. Salaam was visibly armed, and the officers shot a total

of nine bullets between them; seven bullets hit Salaam and one grazed him. Salaam

admits that he was still standing when the third shot hit him and that he does not know for

sure if any other bullets hit him before he hit the ground. DCD#46 at 57. And it is

undisputed that the bullets were fired from the officers’ semi-automatic handguns in
                                              7
continuous, rapid succession. 8 Moreover, it is also undisputed that Salaam fell down next

to his gun. Under these circumstances, where the events were “rapidly evolving” and

there is no evidence that the officers intentionally fired after the perceived threat had been

eliminated, no reasonable jury could conclude that their actions constituted a

constitutionally impermissible use of force. Graham, 490 U.S. at 397.

       Finally, we agree with the District Court that, because the defendants are entitled

to qualified immunity on the federal claims, Salaam’s state law claims are foreclosed.

See Vargas v. City of Phila., 783 F.3d 962, 975 (3d Cir. 2015) (stating that the “PSTCA

provides immunity to municipalities and its employees for official actions unless the

employee’s conduct goes beyond negligence and constitutes ‘a crime, actual fraud, actual

malice, or willful misconduct.’” (quoting 42 Pa. Cons. Stat. § 8550)); see also Sanford v.

Stiles, 456 F.3d 298, 315 (3d Cir. 2006) (recognizing that “the term ‘willful misconduct’

is synonymous with the term ‘intentional tort’” (citation omitted)).

       Based on the foregoing, we will summarily affirm the District Court’s judgment.




8
  Salaam admitted in his Counterstatement of Undisputed Material Facts that “Officer
Delagol fired four shots without pausing.” DCD#47-1 at 13, ¶ 41. He also testified that
the shots were coming “back to back” and “at the same speed,” and he agreed that the
officers “were firing as fast as they could.” DCD#46 at 57, #47-2 at 41, 44.
                                              8
