                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 16-4401
                                      ____________

                                  MARKIM SUMMERS,

                                                  Appellant

                                             v.

                        COMMISSIONER CHARLES RAMSEY;
                       OFFICER DANIEL LEVITT, Badge #5482;
           CITY OF PHILADELPHIA; PHILADELPHIA POLICE DEPARTMENT;
                      OFFICER THOMAS O'BRIEN, Badge #7629;
                          DANIEL WILLIAMS, Badge #6292
                                      ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 2-13-cv-06644)
                       District Judge: Honorable Joel H. Slomsky
                                     ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  October 10, 2017

             Before: HARDIMAN, SHWARTZ, and ROTH, Circuit Judges.

                               (Filed: November 29, 2017)
                                      ____________

                                        OPINION*

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
                                     ____________

HARDIMAN, Circuit Judge.

       Markim Summers shattered the windshield of Philadelphia Police Officer Thomas

O’Brien’s patrol car with two strikes of his bare hand. As Summers wound up for a third

blow, Officer O’Brien shot him twice. Summers sued Officer O’Brien under 42 U.S.C.

§ 1983, alleging that he violated the Fourth Amendment’s prohibition against the use of

excessive force. The District Court granted summary judgment to Officer O’Brien, and

Summers appealed. We will affirm.

                                            I1

                                            A

       We analyze whether Officer O’Brien used excessive force under an “objective

reasonableness standard.” Johnson v. City of Philadelphia, 837 F.3d 343, 349 (3d Cir.

2016) (citation omitted). We consider both “the totality of circumstances leading up to

the shooting” as well as the circumstances at the “precise moment of the shooting.” Id. at

350 (citation omitted).

       Around 5:00 a.m. on June 29, 2013, Officer O’Brien responded to a request for

backup from Officer Daniel Levitt, who had observed Summers naked in a drug store




       1
        The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. § 1291. Plenary review applies to the District Court’s summary
judgment. Johnson v. City of Philadelphia, 837 F.3d 343, 349 n.30 (3d Cir. 2016).

                                            2
parking lot screaming and throwing newspaper stands. Based on this observation, Officer

Levitt thought Summers was high on phencyclidine (PCP). By the time Officer O’Brien

arrived, Summers had left the parking lot to lie down in the street, where he obstructed

the passage of a public bus before getting up and walking again.

       As Summers meandered through the street, Officer O’Brien and, separately,

Officer Daniel Williams arrived. Officers O’Brien, Williams, and Levitt each

maneuvered their respective patrol cars to contain Summers. Summers attempted to reach

into Officer Levitt’s car, but the officer rolled up his window and put the car in reverse.

Summers then suddenly turned and approached Officer O’Brien’s patrol car and struck

the front windshield with his bare hand, damaging the glass. He struck again, this time

shattering the windshield and showering Officer O’Brien with glass dust. As Summers

readied to strike again, Officer O’Brien, who had seen the effects of PCP on other

occasions, moved his hand from the gear shift and shot Summers twice.2 Seemingly

unaffected by the gunshots, Summers walked away from the patrol car before he

collapsed and was taken to a hospital.



       2
         On appeal, Summers, who doesn’t remember the incident, argues that Officer
Williams’s testimony created a disputed material fact as to whether Summers was
“getting off of Officer O’Brien’s car” at that time. Summers Br. 18. We disagree with
Summers’s characterization of the testimony and perceive no dispute as to that fact.
Officer Williams recalled two nearly simultaneous windshield punches “[a]nd
immediately after that [he] heard two gunshots.” App. 283–84. At the time he was shot,
Summers was “still draped over [the] windshield.” App. 290.

                                              3
                                              B

       Based on the facts just described, the District Court held that “no jury could find

that a reasonable officer in O’Brien’s position lacked good reason to believe that Plaintiff

posed a significant threat of death or serious bodily injury.” Summers v. Comm’r Charles

Ramsey, 2016 WL 7188616, at *14 (E.D. Pa. Dec. 12, 2016) (citation and alterations

omitted). The District Court was persuaded that Summers’s previous actions “coupled

with his blows to the patrol car would lead a reasonable police officer to believe [he was]

in fear or of death or serious bodily injury.” Id. We agree.

       Like the District Court, we think our recent decision in Johnson v. City of

Philadelphia, 837 F.3d 343 (3d Cir. 2016), is instructive. In that case, an officer shot a

naked man high on PCP who attacked the officer after the officer tased him. Id. at 346–

48. In affirming summary judgment for the officer in a § 1983 excessive force lawsuit,

we explained that the Fourth Amendment does not require “officers encountering

emotionally or mentally disturbed individuals . . . to passively endure a life-threatening

physical assault, regardless of the assailant’s mental state.” Id. at 353. Here, it was not

unreasonable for Officer O’Brien, whose car windshield was shattered by Summers’s

bare hands, to fear for his life. And based on that fear it was objectively reasonable for




                                              4
Officer O’Brien to use deadly force to stop the ongoing attack. Therefore, we will affirm

the order of the District Court.3




       3
         Judge Roth, who dissented in Johnson, agrees that here there was no excessive
use of force.
                                            5
