                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-27-2008

Hill v. Nigro
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3871




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Recommended Citation
"Hill v. Nigro" (2008). 2008 Decisions. Paper 1515.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1515


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ALD-139                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-3871
                                      ___________

                                 WILLIAM D. HILL, III
                                                    Appellant

                                             v.

                            OFFICER JOSEPH NIGRO,
                             Harrison Police Department
                      ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                               (D.C. Civil No. 05-cv-5117)
                        District Judge: Honorable Joel A. Pisano
                      ____________________________________

         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
                                   February 22, 2008

            Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges.

                               (Filed: February 27, 2008)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

       Appellant William D. Hill, III, filed a complaint under 42 U.S.C. § 1983 against

Officer Joseph Nigro alleging that he had violated his constitutional rights when he fired
shots at him while Hill was fleeing arrest. The United States District Court for the

District of New Jersey entered summary judgment in favor of Officer Nigro, concluding

that his use of force was reasonable as a matter of law under the Fourth Amendment.

Hill, who is proceeding pro se, timely appealed.

       Because we write primarily for the parties who are familiar with the case, we need

not set forth the factual background or procedural history except insofar as it may be

helpful to our discussion. In brief, on September 22, 2004, Hill was driving a stolen

vehicle on a highway entrance ramp in Harrison, New Jersey. Hill contends that Officer

Nigro pursued him used excessive force against him because Nigro fired “numerous”

shots at Hill, who was unarmed. 1 Officer Nigro contends that he fired the shots because

Hill attempted to run him over in the stolen car and because Hill’s reckless driving in the

course of attempting to elude arrest placed the lives of the other drivers around Hill in

danger. It is undisputed that, while attempting to elude arrest, Hill crashed into another

vehicle, sending its driver, Jason Barrus, to the hospital. Hill later pled guilty to the

aggravated assault of Jason Barrus in violation of N.J.S.A. 2C:12-1b(6) and also pled

guilty to fleeing or attempting to elude arrest in violation of N.J.S.A. 2C:29-2b. In his




       1
         Hill’s complaint also contained a claim that the Harrison Police Department had
failed to properly supervise and train Officer Nigro, but this claim was dismissed without
prejudice by the District Court. Although Hill was granted leave to amend his complaint
with respect to this claim, he never filed an amended complaint. In any event, Hill does
not challenge this dismissal on appeal.

                                               2
guilty plea, Hill admitted to driving away at high speeds and creating a serious risk of

death or injury to others.

       This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We subject the District

Court’s grant of summary judgment to plenary review, and apply the same standard that

the District Court should have applied. McLeod v. Hartford Life and Acc. Ins. Co., 372

F.3d 618, 623 (3d Cir. 2004). We may affirm the District Court on any grounds

supported by the record. See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en

banc). Because this appeal presents no substantial question, we will summarily affirm the

District Court’s August 29, 2007 order. 3d Cir. LAR 27.4 and I.O.P. 10.6.

       We agree with the District Court that Hill’s excessive force claim is not barred by

Heck v. Humphrey, 512 U.S. 477 (1994). See Nelson v. Jashurek, 109 F.3d 142, 145-46

(3d Cir. 1997). For the following reasons, we nonetheless agree that summary judgment

was properly entered against Hill.

       A police officer’s use of deadly force constitutes a seizure within the meaning of

the Fourth Amendment and therefore it must be reasonable. See Tennessee v. Garner,

471 U.S. 1, 7 (1985). Where a police 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. Id. at 11. The

issue of whether an intentional use of deadly force by a police officer is permissible under

the Fourth Amendment requires an objective reasonableness inquiry. See Graham v.



                                               3
Connor, 490 U.S. 386, 399 (1989); Abraham v. Raso, 183 F.3d 279, 290 (3d Cir. 1999).

Giving due regard to the pressures faced by the police, the proper inquiry is whether it

was objectively reasonable for the officer to believe, in light of the totality of the

circumstances, that deadly force was necessary to prevent the suspect’s escape, and that

the suspect posed a significant threat of death or serious physical injury to the officer or

others. Abraham, 183 F.3d at 290. Summary judgment is appropriate when the court

resolves all factual disputes in favor of the plaintiff and concludes that the use of force

was objectively reasonable under the circumstances. Id.

       We conclude that, giving due regard to the pressures faced by the police, it was

objectively reasonable for Officer Nigro to believe, in light of the totality of the

circumstances, that deadly force was necessary to prevent Hill’s escape, and that Hill

posed a significant threat of death or serious physical injury to Officer Nigro or others.

See Abraham, 183 F.3d at 289. See also Scott v. Edinburg, 346 F.3d 752, 758 (7th Cir.

2003) (concluding that officer’s use of deadly force was objectively reasonable where the

suspect attempted to run over the police officer and then drove the stolen vehicle at a high

rate of speed through a parking lot containing twelve to fourteen bystanders). Even

assuming arguendo that a genuine issue of material fact exists with respect to whether

Hill attempted to run over Officer Nigro, the record is clear that a reasonable officer

could have reasonably believed that Hill posed a significant threat of death or serious

physical injury to others. During his guilty plea, Hill conceded that the police asked him



                                               4
to pull over, but that he refused and drove away at a speed high enough to cause the death

or serious injury of anyone he hit. Indeed, while attempting to elude arrest, Hill crashed

into another car and its driver had to be taken to the hospital for injuries he sustained.

Under these circumstances, we conclude that summary judgment was properly entered in

favor of Officer Nigro.

       For the foregoing reasons, we will summarily affirm the District Court’s order

entered August 29, 2007.




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