Free Reply Brief - District Court of Delaware - Delaware

Case 1:04-cv-00415-SLR Document 79-2 Filed 03/14/2006 Page 1 of 3P=¤se 2
ALBERT JAMES EROWIMI, Appellant v. DETECTIVE RANDOLPH PFAFP, 7*0+50; DET. THOl'v'l.AS P.
LOONEY, t5·l5'i"i'; POLICE DEPARTMENT OF DELAWARE
NO. 05-2035
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
2006 U.S. App. LEXIS 424
January 4, 2006, Sulartiittetl Under Third Circuit LAF. 34. I fa]
January fr, 2006, Filed
NOTICE:
[*1] RULES Of THE THIRD CIRCUIT COURT OF departmental equipment during tlie course of the arrest,
APPEAIS MAY LIMIT CITATION TO and that plaintiff did not complain ofinjuries at the time
U`NPl.iELISI—IED OPINIONS. PLEASE REFER TO of his arrest or shortly thereafter. In response to the
THE RULES OF THE U'NlTED STATES COURT OF motion, plaintiff did not present any evidence to support
APPEALS POR THIS CIRCUIT. his claim. He mostly rested on the unsubstantiated
allegations of his complaint. Based on facts and
PRIOR HISTORY: On Appeal From the United States circumstances of plaintiffs arrest, as described by the
District Court For the District of Delaware. {DC. Civ. officer and not disputed with competent proof by
No. 03-cv-00404]. District Judge: Honorable Sue L. plaintiff, the officer's actions were objectively
Robinson. reasonable. In the absence of proof of a constitutional
violation, the officer was entitled to qualified immunity
Brown v. Hajj 555* F. Sapp. 2d ISI, 2005 U.S. Di's·r. from plaintiffs claim.
LEXIS 2305 {D. Def., 2005)
OUTCDME: The court affirmed tlie district courfs
judgment.
CASE SUMMARY:
CORE TERIVIS: surrtrnat“y jt1dgt’l’1e1’tt, arrest, excessive
PROCEDURAI. POSTURIE: Plaintiff appealed an order force, police radio, transmissions, amied, objectively
of the United States District Court for the District of reasonable, genuine issue of material fact, radio,
Delaware, granting summary judgment in favor of cjuaiitiedimniunity, disputed, dragged, kicked
defendant arresting officer in plaintiffs action alleging
the use of excessive tbrce during the course of his arrest. LexisNexis[R} I·Ieadnotes
The district court found that the officer was entitled to
qttalifiedimniuriity. Civil Procedure; Appeals: Reviewability: Preservation
for Review
OVERVIEW: The court held that the officer was [HNI] The failure to identify or argue an issue in an
properly granted summary judgment because plaintiff opening brief constitures waiver of that argument on
failed to present sufficient evidence from which a appeal.
reasonable juror could have concluded that the officer's
use of force during the arrest was objectively Civil Procedure: Summary Judgment: Standards of
unreasonable. The ofiieer presented evidence, including Review
affidavits and a transcript of police radio transmissions, Civil Proeedtrre; Appeals: Standards of Review: De
to sliow that he forced plaintiff to the ground in response Novo Review
to reports that a suspect, possibly armed, was fleeing [HN2] The court of appeals exercises plenary review
from a house being searched by police. He also showed over the district ccurfs grant of summary judgment.
that no officer struck, kicked, dragged, or used

Case 1 :04-cv-00415-SLR Document 79-2 Filed O3/14/2006 Page 2 of 3 Past 3
2t1lJo U.S. App. LEXIS 424, *
Constitutional Law: Search dr Seizure: Scope of {holding that [H`Nl] the failure to identify or argue
Protection an issue in an opening brief constitutes waiver of that
Criminal Law dc Procedure: Arrests: Reasonable Force argument on appeal].
[HN3] Excessive force claims are judged under a
reasonableness standard. A court 1‘t‘|1.,l,sl detennine whether
oftlcers' actions are objectively reasonable, in light of the
facts and circumstances confronting them, without regard ----·--——~--————- End Footnotes ——-----------
to their underlying intent or motivation. ----
CUl.l`l‘*~lSEL: ALBERT JAMES BRCFWN, Appellant, Pro
se, Bronx, NY.
We have{*3] jurisdiction pursuant to 25* D'.5'.C. § l 29l.
For R.AND·DLPl{ PFAFF, 'I·‘tL'H5t`}, THCtIvLAS P. [HN2] We exercise plenary review over me District
LCBCINEY, EETT, WILMUQGTDN PDL DEPT, CottI't'S grant of summary judgment. See Abramson v.
Appellees: Rosamaria Tassone, City of l.iv`ilmit·rgton, Law William Paterson College, 2rSU FZ3rl 265, 226 (Srl Cir.
Department, Wilmington, DE. 2f'lll,i. We will affirm, because the District Court
properly entered summary judgment in favor of Pfaff, in
JLJDGES: Before:SL[J"t·'1TER, SMITH AND `v'AN light of the absence of a genuine issue of material fact.
ANTWERPEN, Circuit Judges. Pfaff carried his burden to show that no genuine issue of
material fact precluded judgment in his favor on the
CtPl`i”~lIClN: excemive force claims. [H`N3l Excessive force claims
PER CURIAM are judged under a reasonableness standard. See Graham
v. Connor, 49tl U.S. 3815. 395. llll? S. Cr. lddf, IU4 L.
Albert Brown sued Detective Randolph Ptafi Erl. 2rl N3 i‘l§*8§‘,t. A court must determine "whether
Detective Thomas Looney,and the Police Department of officers' actions are objectively reasonable, in light ofthe
Delaware, claiming the use of excessive force dining the facts aud circumstances confronting them, without regard
course ofhis arrest. ln lus short complaint, he alleged the to their underlying intent or motivation." lcl. at Sli?. Pfaff
following: "Det. Randolph PfaftQ came runing up to nie presented evidence, including aftldavits and a transcript
and slammed, me to the ground as I layed on the Ground. of police radio transmissions, to show that he forced
t was brutally beating in a malicious way." [Complaint at Brown to the ground in response to reports that a suspect,
§ lll.} He also contended that Pfaff and others kicked and possibly armed, was fleeing from a house being
dragged him, causing him permanent iniuryto his iight searchcdby police. n[Appendixto Pialfs Motion for
leg. {ld.} He reported their use of a racial epitbct, and Sumrnary Judgment, at [*4]A-I3-14, l5ll·-tti2.] He also
their threat that a police{*2] dog would bite hini if he showed that no officer struck, kicked, dragged, or used
moved. {Id.} On Dcti‘:ndants* motion to disn1iss Browrls departmental equipment during the course of Browns
complaint for failure to state a claim, or, in the arrest. {Appendix to Pfaffs Motion for Summary
altemative, a motion for summary judgment, the District Judgment, at A-151, 154, 156, 15S, til: intl.} He also
Court granted summary judgment in favor of Looney and submitted evidence that Brown did not complain of
the Police Department. After the remaining parties injuries at the time of his arrest or shortly thereafter. {Id.
engaged in discovery, Pfaff moved again for summary at A—T·‘9-Sl], 154, 156, E: ln2.]·
judgment, arguing that the force he used was objectively
reasonable in light of the totality of the circumstances, in response to Pfaffsmotion, Brown did not present any
and that he was entitled to qualiiied irrmiunity. The evidence to support his claim. He mostly rested on the
DistrictCourt granted his motion. Brown appeals. nl allegations of his conrplaint. Witltout substantiation, he
claimed that Pfaff fabricated the police radio
.................. Footnotes ------------~~-- transmissions. Similarly, he argued that a deputy attorney
-- general forged the signatures on the affidavits used by
Pfaftl To the extent that he disputed the evidence, he
claimed that the statctttcnts in Pfaffs aftldavit constituted
perjury because they differed from Pfaffs testimony at
nl Brown, in his notice of appeal and in his bi·iefs, l3rown's preliminary hearing and trial. He also
confines the issues on appeal to those relatied to the contended that the radio transcript did not describe him
judgment entered in favor of Pfaff. Therefore, we will as the armed suspect.
not consider the judgments entered in favor of
Looney and the Police Department of Delaware. See Based on facts and circumstances of Browri's arrest,
ln re 5`rrrriclr, 338 F..l'd 224, 232 {iid Cir. 2tltJ.i,| as described by Pfaff and not disputed with competent

Case 1 :04-cv-00415-SLR Document 79-2 Filed O3/14/2006 Page 3 of 3 PBEM
2006 U.S. App. LEXIS 424, *
proof bv Browri, Pfaffs actions were objectively
reasonable. Pfaff did not use eacessive[*5] force when
he tackled Brown, who was artemptingroevade capture. rt? ln addition, Brown had a watch in his hand
Ptlthoughacareful analysis ofthe radio transcript reveals {AppeIIant's Brief at 5}, which Pfaff could have
that another suspect, not Brown, was described as arrnccl, mistaken for a weapon.
the police radio transmissions must be viewed in the
context of a chaotic police scene, not with the clarity of
hindsight. See Grotiom, 490 U.S. t1t39t$. n2 Also, despite
Bl'0WI'l.`S argument that Pfaff perjured himself} Pf`aff‘s —-—--------·--——— End Footnotes -———---------
affidavit is not starkly at odds with his previous ----
testimony. {Appendix to Pfaffs Motion for Sunirnary
Judgment, at A-3B·46, 70-72, l50-152.} Furthermore,
although inconsistencies exist, the appreciable difference
is the greater detail used in the affidavit to describe In sum, there is no evideneeon whichareasonablejtiror
Brown's arrest. {Id.] could base a finding that Pfaff used excessive force in
arresting Brown. Furtherrnorc, as t.l1e District Court
-------------—---- Footnotes -·-————————-~--- concluded, in the abcencc[*Et] of proof of a constitutional
- - violation, Pfaff was entitled to qualified immunity from
Brown's claim of excessive force. For thesc reasons, we
will affirm the District Court's order.

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