                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-6-2006

Brown v. Pfaff
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2035




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Brown v. Pfaff " (2006). 2006 Decisions. Paper 1780.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1780


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                             NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                 NO. 05-2035
                              ________________

                          ALBERT JAMES BROWN,

                                       Appellant

                                        v.

                   DETECTIVE RANDOLPH PFAFF, 7060;
                     DET. THOMAS P. LOONEY, 6677;
                  POLICE DEPARTMENT OF DELAWARE
                  ____________________________________

                On Appeal From the United States District Court
                          For the District of Delaware
                         (D.C. Civ. No. 03-cv-00404)
                  District Judge: Honorable Sue L. Robinson
                _______________________________________


                 Submitted Under Third Circuit LAR 34.1(a)
                            JANUARY 4, 2006
     Before: SLOVITER, SMITH AND VAN ANTWERPEN, Circuit Judges.

                           (Filed: January 6, 2006)


                         _______________________

                                OPINION
                         _______________________


PER CURIAM

    Albert Brown sued Detective Randolph Pfaff, Detective Thomas Looney, and the
Police Department of Delaware, claiming the use of excessive force during the course of

his arrest. In his short complaint, he alleged the following: “Det. Randolph Pfaff, came

runing up to me and slammed, me to the ground as I layed on the Ground. I was brutally

beating in a malicious way.” (Complaint at § IV.) He also contended that Pfaff and

others kicked and dragged him, causing him permanent injury to his right leg. (Id.) He

reported their use of a racial epithet, and their threat that a police dog would bite him if

he moved. (Id.) On Defendants’ motion to dismiss Brown’s complaint for failure to state

a claim, or, in the alternative, a motion for summary judgment, the District Court granted

summary judgment in favor of Looney and the Police Department. After the remaining

parties engaged in discovery, Pfaff moved again for summary judgment, arguing that the

force he used was objectively reasonable in light of the totality of the circumstances, and

that he was entitled to qualified immunity. The District Court granted his motion.

Brown appeals.1

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

over the District Court’s grant of summary judgment. See Abramson v. William Paterson

College, 260 F.3d 265, 276 (3d Cir. 2001). We will affirm, because the District Court

properly entered summary judgment in favor of Pfaff, in light of the absence of a genuine

issue of material fact.


       1
        Brown, in his notice of appeal and in his briefs, confines the issues on appeal to
those related to the judgment entered in favor of Pfaff. Therefore, we will not consider
the judgments entered in favor of Looney and the Police Department of Delaware. See In
re Surrick, 338 F.3d 224, 237 (3d Cir. 2003) (holding that the failure to identify or argue
an issue in an opening brief constitutes waiver of that argument on appeal).
       Pfaff carried his burden to show that no genuine issue of material fact precluded

judgment in his favor on the excessive force claims. Excessive force claims are judged

under a reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395 (1989). A

court must determine “whether officers’ actions are objectively reasonable, in light of the

facts and circumstances confronting them, without regard to their underlying intent or

motivation.” Id. at 397. Pfaff presented evidence, including affidavits and a transcript of

police radio transmissions, to show that he forced Brown to the ground in response to

reports that a suspect, possibly armed, was fleeing from a house being searched by police.

(Appendix to Pfaff’s Motion for Summary Judgment, at A-13-14, 150-162.) He also

showed that no officer struck, kicked, dragged, or used departmental equipment during

the course of Brown’s arrest. (Appendix to Pfaff’s Motion for Summary Judgment, at A-

151, 154, 156, 158, & 160.) He also submitted evidence that Brown did not complain of

injuries at the time of his arrest or shortly thereafter. (Id. at A-79-80, 154, 156, & 162.)

       In response to Pfaff’s motion, Brown did not present any evidence to support his

claim. He mostly rested on the allegations of his complaint. Without substantiation, he

claimed that Pfaff fabricated the police radio transmissions. Similarly, he argued that a

deputy attorney general forged the signatures on the affidavits used by Pfaff. To the

extent that he disputed the evidence, he claimed that the statements in Pfaff’s affidavit

constituted perjury because they differed from Pfaff’s testimony at Brown’s preliminary

hearing and trial. He also contended that the radio transcript did not describe him as the



                                              3
armed suspect.

       Based on facts and circumstances of Brown’s arrest, as described by Pfaff and not

disputed with competent proof by Brown, Pfaff’s actions were objectively reasonable.

Pfaff did not use excessive force when he tackled Brown, who was attempting to evade

capture. Although a careful analysis of the radio transcript reveals that another suspect,

not Brown, was described as armed, the police radio transmissions must be viewed in the

context of a chaotic police scene, not with the clarity of hindsight. See Graham, 490 U.S.

at 396.2 Also, despite Brown’s argument that Pfaff perjured himself, Pfaff’s affidavit is

not starkly at odds with his previous testimony. (Appendix to Pfaff’s Motion for

Summary Judgment, at A-38-46, 70-72, 150-152.) Furthermore, although inconsistencies

exist, the appreciable difference is the greater detail used in the affidavit to describe

Brown’s arrest. (Id.)

       In sum, there is no evidence on which a reasonable juror could base a finding that

Pfaff used excessive force in arresting Brown. Furthermore, as the District Court

concluded, in the absence of proof of a constitutional violation, Pfaff was entitled to

qualified immunity from Brown’s claim of excessive force. For these reasons, we will

affirm the District Court’s order.




       2
       In addition, Brown had a watch in his hand (Appellant’s Brief at 5), which Pfaff
could have mistaken for a weapon.

                                               4
