                                                               NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                    No. 10-4575
                                   _____________

         THE ESTATE OF PERRY BREWINGTON, DECENDENT,
BY AND THROUGH THE ADMINISTRATOR OF THE ESTATE JAMES D. ROSEN,
                           ESQUIRE

                                          v.

     JOSEPH LOMBARDO, POLICE OFFICER; HORNER, POLICE OFFICER
             BADGE NUMBER 2349; CITY OF PHILADELPHIA

                    The Estate of Perry Brewington, Appellant

                                   _____________

                  On Appeal from the United States District Court
                        For the Eastern District of Pennsylvania
                               (D.C. No. 2-05-cv-06016)
              District Judge: Chief Magistrate Judge Thomas J. Rueter
                                    _____________

                   Submitted Under Third Circuit L.A.R. 34.1(a),
                                January 13, 2012

    BEFORE: MCKEE, Chief Judge, and FUENTES and JORDAN, Circuit Judges

                          (Opinion Filed: February 28, 2012)
                                   _____________

                             OPINION OF THE COURT
                                  _____________


FUENTES, Circuit Judge.



                                          1
       Syeta Brewington obtained a Protection from Abuse (PFA) order against her

boyfriend, Ramon Mills. In the affidavit in support of the PFA, Syeta alleged that Mills

had threatened to kill her and that he possessed a gun. For that reason, the Court of

Common Pleas PFA order stated that the “Defendant shall immediately relinquish the

following weapons to the Sheriff of Philadelphia County: GUN.” Nevertheless, the two

police officers who served the PFA order on Mills failed to seize his gun. Shortly after

being served with the PFA, Mills shot and killed Syeta’s brother, Perry Brewington.

       The Estate of Perry Brewington filed suit against the two police officers, Joseph

Lombardo and Richard Horner, pursuant to 42 U.S.C. § 1983, alleging that they violated

Brewington’s Fourteenth Amendment due process rights when they failed to seize Mills’

weapon. 1 The Estate claimed that the Officers were responsible for Brewington’s death

under the state-created danger theory of liability. The Officers filed a motion for

summary judgment. Judge Ludwig denied this motion with respect to the Estate’s due

process claim against the Officers.

       The case went to trial before Chief Magistrate Judge Thomas J. Rueter from

August 11, 2010 to August 13, 2010, and the jury found in the Officers’ favor. The

Estate filed a Motion for a New Trial pursuant to Federal Rule of Civil Procedure 59(a)

and 60(b), but Judge Rueter denied this motion on September 29, 2010. The Estate then

filed a Motion for Reconsideration, which Judge Rueter denied on November 3, 2010.




1
  The Estate’s complaint also named the City of Philadelphia as a defendant, and it raised
claims of wrongful death and municipal liability that are not at issue on appeal.
                                             2
         The issue now on appeal is the same issue presented to the District Court in the

Motion for Reconsideration. The Estate argues that a new trial should have been granted

because the testimony the Officers gave at trial contradicted their deposition testimony

and was therefore “contrary to the law of the case.” The Estate contends that, in his

ruling on the Officers’ summary judgment motion, Judge Ludwig determined “as a

matter of law” that the PFA order required the Officers to seize Mills’ gun. 2 Thus, the

Estate believes that the Officers should not have been permitted to testify otherwise at

trial.

         After carefully reviewing the record and the submissions of the parties, we find no

basis for disturbing the District Court’s thorough and thoughtful opinion and judgment. 3

Despite the horrendous facts of this case and the shortcomings of the Officers’ efforts to

enforce the PFA, the Estate’s arguments are not persuasive. The Estate had a full and fair

opportunity to impeach the Officers regarding inconsistencies between their deposition


2
  In his opinion, Judge Ludwig noted that, in their depositions, “Officer Harner . . .
testified that ‘if it [the PFA] said to remove the weapons, I would have removed them,
yes,’ [and] Officer Lombardo testified that if a PFA requires relinquishment of a weapon,
the serving officer is required to confiscate it.” Estate of Brewington v. Lombardo, No.
05-6016, 2008 U.S. Dist. LEXIS 69430, at *4 (E.D. Pa. Sept. 15, 2008). He also stated
that the officers failed to confiscate Mills’ weapon “despite the clear language of the
PFA.” Id. at *6.
3
 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, and we
have appellate jurisdiction pursuant to 28 U.S.C. § 1291. “Generally, the denial of a
motion for reconsideration is reviewed for an abuse of discretion. Where a district
court’s denial of a motion to reconsider is based upon the interpretation of legal precepts,
however, our review of the lower court’s decision is plenary.” North River Ins. Co. v.
CIGNA Reinsurance Co., 52 F.3d 1194, 1203 (3d Cir. 1995) (citation omitted).


                                              3
testimony and their trial testimony. Moreover, it seems inappropriate to view Judge

Ludwig’s denial of summary judgment as creating “law of the case.” As the Ninth

Circuit has stated, “[s]uch a denial merely postpones decision of any question; it decides

none. To give it any other effect would be entirely contrary to the purpose of the

summary judgment procedure.” Dessar v. Bank of Am. Nat’l Trust & Sav. Ass’n, 353

F.2d 468, 470 (9th Cir. 1965). Therefore, we will affirm the judgment for substantially

the reasons set forth in the District Court’s opinion.




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