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In one of the first decisions to implement a new supervisory rule announced late last year by the 3rd U.S. Circuit Court of Appeals, a federal judge has ruled that a police officer must stand trial in a civil suit that accuses him of fatally shooting an unarmed suspect who posed no threat. But U.S. District Judge William H. Yohn Jr. of the Eastern District of Pennsylvania cleared a second officer who maced and handcuffed the man after he was shot, finding that no jury could ever find those actions violated the man’s constitutional rights. “Plaintiffs have cited no cases which suggest that the Constitution precludes an officer from using mace and handcuffs to secure an injured, non-responsive felony suspect whose hand is not in plain sight and is thus a danger to the officers,” Yohn wrote in his 17-page opinion in Forbes v. Township of Lower Merion. Yohn had previously ruled that both officers — John Salkowski and Craig McGowan — should stand trial in a suit brought by the parents of Erin Dudley Forbes. The officers appealed, arguing that Yohn should have granted them summary judgment on qualified immunity grounds. The U.S. Supreme Court held in 1985 that when a defendant moves for summary judgment based on qualified immunity, the denial of the motion may be appealed immediately under the collateral-order doctrine. The high court’s decision in Mitchell v. Forsyth held that qualified immunity “is an immunity from suit rather than a mere defense to liability and … is effectively lost if a case is erroneously permitted to go to trial.” When Salkowski and McGowan appealed Yohn’s ruling, the 3rd Circuit found it was unable to decide the case without more information from Yohn. Third Circuit Judge Samuel A. Alito Jr. found that Yohn denied the officers’ summary judgment motions “without elaboration,” holding only that the plaintiffs had “raised genuine issues of material fact” about whether the officers’ conduct amounted to excessive force. “Because the district court did not identify this set of facts, we find that we are greatly hampered in deciding this appeal,” Alito wrote in an opinion joined by 3rd Circuit Judge Julio M. Fuentes and visiting Senior U.S. District Judge Louis F. Oberdorfer of the District of Columbia. As a result, Alito found that the case should be remanded to Yohn “so that the facts found to be in dispute can be specified.” But Alito said he didn’t fault Yohn for not specifically identifying the genuinely disputable material facts “because our prior qualified-immunity cases have not imposed the requirement.” Alito found that the problem is common enough that it called for a new supervisory rule. “We cannot hold that the district court’s denial of summary judgment constituted error here because in the absence of a clear supervisory rule, the Federal Rules of Civil Procedure do not impose on trial courts the responsibility to accompany such an order with conclusions of law,” Alito wrote. “We instead exercise our supervisory power to require that future dispositions of a motion in which a party pleads qualified immunity include, at minimum, an identification of relevant factual issues and an analysis of the law that justifies the ruling with respect to those issues,” Alito wrote. In a footnote to Alito’s Dec. 11, 2002, decision, the court noted that Judge Oberdorfer concurred in most of Alito’s decision, but “as a visiting judge he expresses no opinion about the supervisory rule established for the [3rd] Circuit.” Alito found that, over the years, the 3rd Circuit has issued other supervisory rules in “analogous situations where clearer statements of law or references to the record are necessary to facilitate meaningful appellate review.” In the 1990 decision in Vadino v. A. Valey Engineers, the court reviewed a grant of summary judgment whose reasoning was not apparent from the record and which did not provide any indication of the grounds on which it was based. The court issued a supervisory rule “to require the district courts in this circuit to accompany grants of summary judgment hereafter with an explanation sufficient to permit the parties and this court to understand the legal premise for the court’s order.” Likewise, in the 1982 decision in Quality Prefabrication Inc. v. Daniel J. Keating Co., the 3rd Circuit issued a supervisory rule instructing trial judges that “a dismissal of a complaint with prejudice as a Rule 37 sanction must be accompanied by some articulation on the record of the court’s resolution of the factual, legal, and discretionary issues presented.” And in the 1975 decision in Allis-Chalmers Corp. v. Philadelphia Electric Co., the court instructed that entry of final judgment on a claim in a multiparty action pursuant to Rule 54(b) should “clearly articulate the reasons and factors underlying [the] decision to grant 54(b) certification.” Now Yohn has followed the new rule and handed down a decision that clears one officer, but orders the second to stand trial. In the suit, Lorenzo and Ella Forbes claim that both of the officers who arrested their son used excessive force that led to his death. According to court papers, in the early-morning hours of Jan. 10, 2000, Erin Dudley Forbes ended his shift working as a security guard and stopped at an A-Plus convenience store in Bryn Mawr, Pa. Soon after, the store clerk telephoned 911, reporting that Forbes had robbed the store and beaten the clerk over the head with “what looked like a billy jack.” The clerk told police that the assailant was not otherwise armed and described Forbes and his car. Police caught up with Forbes in Lower Merion Township after an automobile pursuit, and at least some of the events that followed were captured on a grainy police videotape. Both sides agree that the officers surrounded Forbes’ car and shouted commands and that Forbes then extended his middle finger and bolted from the car, brandishing a heavy wooden staff. But at that point, the accounts diverge. The officers claim that Forbes charged at police and motioned to attack a retreating Salkowski. But the plaintiffs say witness accounts and other evidence show that Forbes darted away from the officers. Salkowski fired one shot, felling Forbes. After Forbes was shot, he lay on the ground, still clutching the staff, with one hand obscured. McGowan then kicked the staff aside and ordered Forbes to show his hands. When Forbes did not comply, McGowan sprayed him once with pepper spray, called paramedics, and minutes later shackled his hands with the help of another officer. The officers claim that Forbes fought the handcuffing, but according to the plaintiffs, Forbes offered “no resistance to the handcuffing” and was “motionless” by that point. After Forbes was restrained, police began administering first aid. Doctors pronounced Forbes dead roughly a half-hour after the shooting. In his first ruling, Yohn found that both officers should stand trial. But in a ruling handed down earlier this month, Yohn decided that while Forbes’ parents have a valid claim against Salkowski, they have no claim against McGowan. Focusing first on the shooting, Yohn found that the U.S. Supreme Court’s 1985 decision in Tennessee v. Garner held that “the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” When a suspect poses no immediate threat to the officer, and no threat to others, the Garner court held, “the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” With that standard in mind, Yohn concluded that a reasonable jury could find against Salkowski. “In this case, there is no question that, prior to being shot, the decedent was only armed with his walking stick,” Yohn wrote. For the walking stick to meet the definition of a weapon, Yohn said, Salkowski either had to believe that it was a weapon, such as a firearm, or that Forbes was attempting to use it as a weapon. A jury must decide that issue, Yohn said, because the plaintiffs have evidence that would support a finding that the officer did not perceive it as a weapon. “Although defendant Salkowski testified in his deposition that, immediately after exiting his car, the decedent carried his cane with both hands in a manner resembling a shotgun, one witness to the incident stated that she could see the decedent’s left hand, implying that he was not holding the cane in the manner described by defendant Salkowski,” Yohn wrote. Yohn said the plaintiffs also have evidence from witness accounts that Forbes was not attempting to assault Salkowski, but instead was trying to escape from him at the time he was shot. In contrast to those witnesses, Salkowski testified that Forbes was screaming and holding his “weapon” above his head with both hands, and that just before the shooting, Forbes had charged at him with a crazed expression on his face. But Yohn found that none of McGowan’s actions in macing and handcuffing Forbes after the shooting could be considered violations of Forbes’ constitutional rights. “Although plaintiffs argue that the decedent’s lack of response was a result of his injuries, they have produced no evidence demonstrating that defendants knew or should have known that the decedent was unarmed at the time that they maced and handcuffed him,” Yohn wrote. “Consequently, it was reasonable for defendant McGowan to anticipate that the decedent may have been playing opossum only to then assault an approaching officer with a concealed weapon,” Yohn wrote. The Forbes are represented by attorney Lloyd G. Parry of Davis Parry & Tyler in Philadelphia. Lower Merion and the two officers are represented by attorneys Sheryl S. Chernoff and Susan F. Burt of Burt-Collins & Chernoff in Merion Station, Pa.

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