                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-11-2002

Forbes v. Lower Merion
Precedential or Non-Precedential: Precedential

Docket No. 01-3942




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Recommended Citation
"Forbes v. Lower Merion" (2002). 2002 Decisions. Paper 795.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/795


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PRECEDENTIAL

       Filed December 11, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3942

LORENZO A. FORBES; ELLA M. FORBES, IN THEIR OWN
RIGHT AND AS CO-ADMINISTRATORS OF THE ESTATE
OF ERIN DUDLEY FORBES, DECEASED

v.

TOWNSHIP OF LOWER MERION; JOSEPH J. DALY,
POLICE SUPERINTENDENT, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS TOWNSHIP OF LOWER MERION
POLICE SUPERINTENDENT; JOHN SALKOWSKI,
OFFICER, INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS A TOWNSHIP OF LOWER MERION POLICE
OFFICER; JOHN DOE, REPRESENTING UNKNOWN
EMPLOYEES OF THE LOWER MERION TOWNSHIP
POLICE DEPARTMENT, INDIVIDUALLY AND IN THEIR
OFFICIAL CAPACITIES AS TOWNSHIP OF LOWER
MERION POLICE OFFICERS; CRAIG MCGOWAN, SGT.,
individually and in his official capacity as a Tow nship of
Lower Merion Police Officer c/o Lower Merion Police
Department, 71 East Lancaster Avenue,
Ardmore, PA 19003

John Salkowski; Craig McGowan,

       Appellants




ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
District Court Judge: Honorable William H. Yohn, Jr.
(D.C. No. 00-cv-00930)

Argued: September 12, 2002

Before: ALITO and FUENTES, Circuit Judges, and
OBERDORFER,*District Judge

(Filed: December 11, 2002)

       LLOYD G. PARRY (Argued)
       Davis, Parry & Tyler
       14th Floor, 1525 Locust Street
       Philadelphia, PA 19102

       Counsel for Appellants

       SHERYL S. CHERNOFF
       SUSAN F. BURT (Argued)
       Burt-Collins & Chernoff
       P.O. Box 237
       Merion Station, PA 19066

       Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

This action under 42 U.S.C. S 1983 arises out of a police
shooting in Lower Merion Township, Pennsylvania.
Defendants John Salkowski and Craig McGowan, two police
officers, appeal from an order of the District Court denying
their motion for summary judgment based on qualified
_________________________________________________________________

* The Honorable Louis F. Oberdorfer, Senior District Judge for the
District of Columbia, sitting by designation.

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immunity. In denying that motion, the District Court held,
without elaboration, that the plaintiffs had raised genuine
issues of material fact regarding their Fourth Amendment
excessive-force claim. The scope of our jurisdiction to
review the decision of the District Court depends upon the
precise set of facts that the District Court viewed as subject
to genuine dispute. Because the District Court did not
identify this set of facts, we find that we are greatly
hampered in deciding this appeal. Accordingly, we remand
the case to the District Court so that the facts found to be
in dispute can be specified. We also announce a
supervisory rule to be followed in all subsequent cases in
which a summary judgment motion based on qualified
immunity is denied on the ground that material facts are
subject to genuine dispute. So that we can carry out our
review function without exceeding the limits of our
jurisdiction under Johnson v. Jones, 515 U.S. 304 (1995),
we will henceforth require the District Courts to specify
those material facts that are and are not subject to genuine
dispute and explain their materiality.

I.

In the early-morning hours of January 10, 2000, Mr. Erin
Dudley Forbes concluded his shift working as a security
guard and stopped at an A-Plus convenience store in Bryn
Mawr, Pennsylvania. Shortly thereafter, the clerk
telephoned 911, reporting that Forbes had robbed the store
and beaten the clerk over the head with "what looked like
a billy jack." The clerk told police that the assailant was not
otherwise armed and described Forbes and his car.
Dispatchers transmitted the description of the fleeing
suspect on police radio and announced that a robbery had
occurred.

Police caught up with Forbes in Lower Merion Township
after an automobile pursuit, and at least some of the events
that followed were captured on a grainy police videotape
that is part of the record of this case. The parties agree that
the officers surrounded Forbes’s car and shouted
commands and that Forbes then extended his middle finger
and bolted from the car, brandishing a heavy wooden staff.
Here the parties’ accounts diverge. The officers claim that

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Forbes charged "right at" police and motioned to attack a
retreating Salkowski. By contrast, the plaintiffs claim that
Forbes darted away from the officers, but they appear to
concede that the trajectory of his footpath triangulated
towards the direction in which Salkowski also ran.
Salkowski fired one shot, felling Forbes.

After Forbes was shot, he lay on the ground,
"mumbl[ing]" or "moan[ing]," still clutching the staff, with
one hand obscured. McGowan then kicked the staff aside
and ordered Forbes to show his hands. Whether Forbes
suffered from delirium or fading consciousness or simply
intended to resist police, he did not comply. McGowan then
sprayed him once with pepper spray, called paramedics,
and minutes later shackled his hands with the help of
another officer. The defendants claim that Forbes fought
the handcuffing, but according to the plaintiffs, Forbes
offered "no resistance to the handcuffing" and was
"motionless" by that point. After Forbes was restrained,
police began administering first aid. Doctors pronounced
Forbes dead roughly a half hour after the shooting.

Forbes’s parents filed this action against Salkowski and
McGowan under 42 U.S.C. S 1983, alleging that the officers
violated Forbes’s rights under the Fourth, Fifth, and
Fourteenth Amendments. The officers moved for summary
judgment, asserting that the plaintiffs’ claims were defeated
by qualified immunity, but the District Court denied
summary judgment on the plaintiffs’ Fourth Amendment
excessive-force claim on the ground that genuine issues of
material fact existed regarding that claim. The Court did
not specify which material facts it viewed as subject to
genuine dispute, however, and this appeal followed.

II.

Although 28 U.S.C. S 1291 ordinarily limits appellate
jurisdiction to "appeals from . . . final decisions of the
district courts," certain collateral orders merit interlocutory
review because they "finally determine claims of right . . .
too important to be denied review and too independent of
the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated." Cohen v.

                                4


Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).
When a defendant moves for summary judgment based on
qualified immunity, the denial of the motion may be
appealed immediately under the collateral-order doctrine
because "[t]he entitlement is an immunity from suit rather
than a mere defense to liability[ ] and . .. is effectively lost
if a case is erroneously permitted to go to trial." Mitchell v.
Forsyth, 472 U.S. 511, 526-27 (1985). However, this right
to interlocutory review is limited "to the extent that [a claim
of qualified immunity] turns on an issue of law." Id. at 530.
For instance, we may "review whether the set of facts
identified by the district court is sufficient to establish a
violation of a clearly established constitutional right," but
we may not "consider whether the district court correctly
identified the set of facts that the summary judgment
record is sufficient to prove." Ziccardi v. City of Philadelphia,
288 F.3d 57, 61 (3d Cir. 2002). When a defendant argues
that a trial judge erred in denying a qualified-immunity
summary-judgment motion because the judge was
mistaken as to the facts that are subject to genuine
dispute, the defendant’s argument cannot be entertained
under the collateral-order doctrine but must instead await
an appeal at the conclusion of the case. See Johnson, 515
U.S. at 313-16.

Qualified immunity insulates from civil liability
government officials performing discretionary functions
insofar as "their actions could reasonably have been
thought consistent with the rights they are alleged to have
violated." Anderson v. Creighton, 483 U.S. 635, 638 (1987).
In assessing a claim of qualified immunity, we must review
the law relevant to the official’s behavior and ask whether
the official could have believed that his or her actions were
justified by law. See Good v. Dauphin Cty. Soc. Servs., 891
F.2d 1087, 1094 (3d Cir. 1989). The second part of this
inquiry contains two components. To overcome the defense
of qualified immunity, (1) the facts, "[t]aken in the light
most favorable to the party asserting the injury,[must]
show the officer’s conduct violated a constitutional right,"
Saucier v. Katz, 533 U.S. 194, 201 (2001), and (2) "[t]he
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right." Anderson, 483 U.S. at 640.

                                5


Qualified immunity is defeated if an official "knew or
reasonably should have known that the action he took
within his sphere of official responsibility would violate the
constitutional rights of the [plaintiff], or if he took the
action with the malicious intention to cause a deprivation
of constitutional rights or other injury." Wood v. Strickland,
420 U.S. 308, 322 (1975). The doctrine aims to exclude "the
plainly incompetent" and "those who knowingly violate the
law" while accommodating reasonable "mistaken
judgments." Hunter v. Bryant, 502 U.S. 224, 229 (1991)
(citation and internal quotation marks omitted). If an
official could have reasonably believed that his or her
actions were lawful, the official receives immunity even if in
fact the actions were not lawful.

III.
In this case, the District Court denied Salkowski’s and
McGowan’s summary-judgment motions without identifying
the set of material facts that the Court viewed as subject to
genuine dispute. As a consequence, we are greatly
hampered in ascertaining the scope of our jurisdiction. If
the District Court had specified the material facts that, in
its view, are or are not subject to genuine dispute, we could
"review whether the set of facts identified by the district
court [as not subject to genuine dispute] is sufficient to
establish a violation of a clearly established constitutional
right," Ziccardi, 288 F.3d at 61, but based on the District
Court’s spare comments in denying the defendants’
summary-judgment motion, we are hard pressed to carry
out our assigned function. We do not fault the District
Court for not specifically identifying the genuinely
disputable material facts because our prior qualified-
immunity cases have not imposed the requirement.
However, we find that the lack of such a specification
impairs our ability to carry out our responsibilities in cases
such as this.

In analogous situations where clearer statements of law
or references to the record are necessary to facilitate
meaningful appellate review, this Court has announced
supervisory rules regulating important procedural matters.
For example, in Vadino v. A. Valey Engineers, 903 F.2d 253

                                6


(3d Cir. 1990), we reviewed a grant of summary judgment
whose reasoning was not apparent from the record and
which did not provide any indication of the grounds on
which it was based. We noted that a requirement that
District Courts accompany such orders with some
articulation of their reasoning would not impose a serious
burden, would assist parties in crafting appellate briefs
responsive to dispositive issues, and would clearly frame
appellate review. Thus, we exercised our supervisory power
"to require the district courts in this circuit to accompany
grants of summary judgment hereafter with an explanation
sufficient to permit the parties and this court to understand
the legal premise for the court’s order." Vadino, 903 F.2d at
259. Other situations in which we have established similar
supervisory rules include, e.g., Sowell v. Butcher & Singer,
Inc., 926 F.2d 289, 295 (3d Cir. 1991) (holding that a court
entering a directed verdict pursuant to Rule 50 should "set
forth an explanation sufficient to permit this court to
understand the legal premise for the court’s order") (citation
and internal quotation marks omitted); Quality
Prefabrication, Inc. v. Daniel J. Keating Co., 675 F.2d 77, 81
(3d Cir. 1982) (ruling that "a dismissal of a complaint with
prejudice as a Rule 37 sanction must be accompanied by
some articulation on the record of the court’s resolution of
the factual, legal, and discretionary issues presented"); and
Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360,
364 (3d Cir. 1975) (holding that entry of final judgment on
a claim in a multiparty action pursuant to Rule 54(b)
should "clearly articulate the reasons and factors
underlying [the] decision to grant 54(b) certification"). "It is
essential . . . that a reviewing court have some basis for
distinguishing between well-reasoned conclusions arrived at
after a comprehensive consideration of all relevant factors,
and mere boiler-plate approval phrased in appropriate
language but unsupported by evaluation of the facts or
analysis of the law." Protective Committee for Indep.
Stockholders of TMT Trailer Ferry, Inc. v. Anderson , 390 U.S.
414, 434 (1968).

At least one other Circuit has encountered the same
difficulty in the qualified-immunity context that motivates
us to act in a supervisory capacity here. See Beck v.
Schwartz, 992 F.2d 870, 871 (8th Cir. 1993) (holding that

                                7


it was "error" for "the district court[to] overrule[ ]
appellant’s motion for summary judgment without reference
to th[e] [qualified immunity] defense"). Our approach differs
from Beck’s. We cannot hold that the District Court’s denial
of summary judgment constituted error here because in the
absence of a clear supervisory rule, the Federal Rules of
Civil Procedure do not impose on trial courts the
responsibility to accompany such an order with conclusions
of law. See FED. R. CIV. P. 52(a) ("Findings of fact and
conclusions of law are unnecessary on decisions of motions
under Rule . . . 56. . . ."). We instead exercise our
supervisory power to require that future dispositions of a
motion in which a party pleads qualified immunity include,
at minimum, an identification of relevant factual issues and
an analysis of the law that justifies the ruling with respect
to those issues.

Having concluded that a supervisory rule is necessary in
this context, it falls upon us to determine the appropriate
disposition of the instant appeal. In Vadino, we limited our
supervisory rule to future cases and proceeded to address
the merits rather than remand the case to the District
Court. See 903 F.2d at 259-60. That approach is common
when the record provides sufficient guidance for an
appellate court seeking to retrace the analytical steps taken
by the District Court. See also, e.g. , Quality Prefabrication,
Inc. v. Daniel J. Keating Co., 675 F.2d 77, 81 (3d Cir. 1982);
Solomon v. Continental Am. Life Ins. Co., 472 F.2d 1043,
1048 (3d Cir. 1973). By contrast, in Allis-Chalmers, we did
not address the merits of the appeal with finality and
"remanded only for a statement of reasons so that this
Court may properly determine" whether the original
decision was proper. 521 F.2d at 367 n.16 (emphasis
removed). Such a remand is favored when the record omits
key information, e.g., Gould v. Members of the New Jersey
Div. of Water Policy and Supply, 555 F.2d 340, 341 (3d Cir.
1977), or when the lack of sufficient articulation for the
decision renders appellate review unduly speculative.
Farnese v. Bagnasco, 687 F.2d 761, 766 (3d Cir. 1982). In
this case, although we are satisfied with the record’s
completeness, we are persuaded to remand by our desire
not to conduct a narrower or more expansive review than is
required by the precise contours of the District Court’s

                                8


order. Since we are unable to identify those contours, we
proceed to detail the parameters of the articulation
necessary for us to conduct a meaningful review.

IV.

We are familiar with the various factual disputes between
the parties and would find it helpful in deciding this appeal
for the District Court to identify which such disputes it
found genuine and material.

The plaintiffs, as noted, assert that Forbes bolted away
from the officers as they converged on him, and they
therefore dispute Salkowski’s argument that he shot Forbes
in self-defense. A diagram depicting the position of Forbes’s
body relative to the street and cars appears to constitute
one of the plaintiffs’ principal items of evidence on this
question. The plaintiffs also refer to the police video
recording and cite an examiner’s report on the trajectory of
the bullet through Forbes’s body. We are interested to know
whether the District Court found that these items of
evidence were sufficient to raise genuine factual disputes
regarding Forbes’s location, the direction in which he was
facing, or his direction of movement at the moment of the
shooting, and, if so, whether the plaintiffs’ allegations are
sufficient to establish a violation of a constitutional right.

Appellants dispute the materiality of Forbes’s location
and direction, arguing that Salkowski could reasonably
have believed himself legally entitled to fire his weapon in
any event. Pennsylvania law empowers police officers to use
deadly force when "(i) such force is necessary to prevent
[an] arrest from being defeated by resistance or escape; and
(ii) the person to be arrested has committed or attempted a
forcible felony or is attempting to escape and possesses a
deadly weapon." 18 PA. CONS. ST. S 508(A)(1) (2002). The
officers argue that a reasonable person in Salkowski’s
position, in reliance on that statute, could have believed it
lawful to act as Salkowski did. Consequently, another
important question is whether the District Court found that
a genuine issue of fact existed as to whether Forbes’s
wooden staff was or might reasonably be perceived as a
deadly weapon. During oral arguments, Appellees

                                9


maintained that a factual issue existed regarding this
question but conceded that the statute did not implicate
any other material issues.

The parties do not propose a statutory framework that
covers McGowan’s conduct, so we are even more hesitant to
surmise what factual issues the District Court may have
identified or considered material. At minimum, it would aid
us to know if the District Court concluded that the
Appellees raised genuine issues regarding whether Forbes
posed any danger to the officers after being shot or whether
police could reasonably assume that he might. If the
District Court considered any other factual issues bearing
on whether McGowan’s conduct was objectively
unreasonable or whether it interfered with a clearly
established constitutional right, a description and analysis
of those issues would likewise assist us considerably.

The judgment of the District Court is vacated, and we
remand the case for reentry of judgment in accordance with
the supervisory rule announced herein. This panel shall
retain jurisdiction and proceed to decide any questions
properly within our jurisdiction after the District Court
provides the requested specification.1

A True Copy:
Teste:

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

_________________________________________________________________
1. Judge OBERDORFER concurs in the result and in parts I, II, and IV
of the opinion. As a visiting judge he expresses no opinion about the
supervisory rule established for the Circuit in part III.




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