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Media Alerts - Johnson v. City of Philadelphia - Third Circuit
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September 23, 2016
  Johnson v. City of Philadelphia - Third Circuit
Headline: Third Circuit Finds that Police Officer's Use of Deadly Force to Protect against Potentially Fatal Attack was Justified Even if Initial Contact with Mentally Disturbed Individual Did Not Follow Department Protocol

Area of Law: Fourth Amendment, Excessive Force

Issue(s) Presented: Whether police officer's use of force was objectively reasonable in the circumstances?

Brief Summary: The plaintiff, as administrator of Kenyado Newsuan's estate, sued Officer Thomas Dempsey and the Philadelphia Police Department for using excessive force while attempting to arrest Mr. Newsuan, which force ended in Newsuan's death. Newsuan was high on PCP and standing naked in the street when Dempsey first confronted him. Philadelphia Police Department policy called for employing a more cautious and less confrontational approach than that pursued by Dempsey when dealing with severely mentally disturbed individuals. The plaintiff argued that, if Dempsey had followed department policy, Newsuan would never have attacked Dempsey and attempted to grab his gun, and therefore would never have been shot by Dempsey in self-defense. While agreeing that Dempsey should have behaved differently, the Third Circuit found that Newsuan's sudden and violent attack interrupted the chain of causation and was a superseding cause of Newsuan's death, thereby relieving Dempsey of any responsibility for Newsuan's demise.

Extended Summary: Philadelphia Police Officer Thomas Dempsey arrived at the 5800 block of North Mascher Street in response to several reports that a naked man was standing in the street yelling and flailing his arms. There he encountered Kenyado Newsuan, who was indeed naked, yelling and flailing his arms. He was also high on PCP, which fact Dempsey probably knew. The Philadelphia Police Department instructs officers who encounter a severely mentally disturbed individual to, among other things, request adequate backup, maintain a zone of safety, attempt to deescalate the situation through communication, and avoid taking immediate aggressive actions. Officer Dempsey did not follow these directives. Instead he exited his patrol car with taser in hand and ordered Newsuan to come to where Dempsey was standing. After initially ignoring Dempsey's order, Newsuan eventually approached Dempsey. When he got too close, Dempsey tasered him. Subsequently, there was a violent confrontation between the two, with Newsuan hitting Dempsey, choking him, and banging him against the squad car. Ultimately, Newsuan tried to get Dempsey's gun from his holster. At that point, Dempsey shot and killed Newsuan.

Plaintiff, as administrator of Newsuan's estate, sued Officer Dempsey and the City of Philadelphia for using unconstitutionally excessive force. The District Court granted summary judgment in favor of the defendants, holding that there was no genuine material dispute that Officer Dempsey reasonably used deadly force to defend himself from Newsuan's attack. Plaintiff appealed.

The Third Circuit analyzed the case from the perspective of a reasonable officer in light of the totality of circumstances. It found that Dempsey was justified in using deadly force to defend himself once Newsuan began reaching for his gun. The plaintiff argued that even if the use of lethal force was justified after Newsuan's attack, the seizure as a whole was unreasonable because Dempsey did not comply with the Police Department directive regarding encounters with severely mentally disabled persons. Had Dempsey followed police department policy, the violent confrontation would have never occurred and Dempsey would never have been required to use deadly force to protect his own life. The Court, however, found that the plaintiff's argument failed on the fundamental tort principle of proximate cause, specifically the principle that a superseding cause breaks the chain of proximate causation. The Court concluded as a matter of law that Newsuan's violent, precipitate, and illegal attack on Officer Dempsey severed any causal connection between Dempsey's initial actions and his subsequent use of deadly force. Newsuan's assault coupled with his attempt to gain control of Dempsey's gun was the direct cause of his death.

The Court emphasized a note of caution regarding the straightforward analysis of the proximate cause issue. It noted that the opinion should not be misread to broadly immunize police officers from Fourth Amendment liability whenever a mentally disturbed person threatens an officer's physical safety. This case presented exceptional circumstances, namely the sudden and unexpected attack, that forced the officer into a position to defend himself. In other situations, particularly when plaintiffs can show that mentally ill individuals are likely to react in certain ways to certain provocations, it may be that the chain of causation will not be broken.

The Court affirmed the lower court's granting of summary judgment to the defendants.

The full opinion can be found at

Panel: Fuentes, Krause, and Roth

Argument Date: February 11, 2016

Date of Issued Opinion: September 20, 2016

Docket Number: 15-2346

Decided: Affirmed

Case Alert Author: Jasmine M.Williams

Counsel: Armando A. Pandola, Jr., Esq. and Alan E. Denenberg, Esq. of Abramson & Denenberg, P.C., Attorneys for Appellants; Craig R. Gottlieb, Esq., of the City of Philadelphia Law Department, Attorneys for Appellees

Author of Opinion: Circuit Judge Fuentes

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 09/23/2016 01:37 PM     3rd Circuit  

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