Brad Rush v. City of Philadelphia

                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
             ________________

                   No. 21-1298
                ________________

BRAD RUSH, As Administrator of the Estate of Jeffrey
              Dennis, Deceased.

                         v.

           CITY OF PHILADELPHIA;
OFFICER RICHARD NICOLETTI, In his individual and
               official capacity,

              Officer Richard Nicoletti,
                               Appellant



   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
        (District Court No.: 2-19-cv-00932)
    District Judge: Honorable Joshua D. Wolson



              Argued March 13, 2023
   Before RESTREPO, AMBRO, and FUENTES, Circuit
                     Judges


             (Opinion filed: August 30, 2023)



Shane Haselbarth [ARGUED]
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN
2000 Market Street
Suite 2300
Philadelphia, PA 19103

            Counsel for Appellant Officer Richard Nicoletti

James P. Davy [ARGUED]
ALL RISE TRIAL & APPELLATE
1602 Frankford Ave.
P.O. Box 15216
Philadelphia, PA 19125

John J. Coyle
MCELDREW PURTELL
123 South Broad Street
Suite 2250
Philadelphia, PA 19109

            Counsel for Appellee Brad Rush

Craig R. Gottlieb
CITY OF PHILADELPHIA LAW DEPARTMENT
1515 Arch Street




                            2
17th Floor
Philadelphia, PA 19102

            Counsel for Appellee City of Philadelphia

                  _________________

               OPINION OF THE COURT
                 __________________




                            3
RESTREPO, Circuit Judge

        As a reviewing court, we must often avoid the
temptation to delve into factual inquiries that are beyond our
ken. Our jurisdictional rules require us to exercise such
restraint in reviewing this interlocutory appeal, taken from the
denial of qualified immunity to a Philadelphia Police officer
who fatally shot an unarmed driver suspected of criminal
activity in August 2018.
        During execution of a warrant, six plainclothes officers
in unmarked police cars surrounded Mr. Jeffrey Dennis’s
vehicle at an intersection in West Philadelphia. Over the
course of 48 seconds, Mr. Dennis attempted to free his car,
bumping into the surrounding police vehicles. At one point,
Mr. Dennis’s car appeared to have stopped moving, and
Officer Richard Nicoletti shot Mr. Dennis three times through
the driver’s side window. Mr. Dennis died at the scene.
        Although the incident was captured on video by a
security camera, the District Court on summary judgment
found open questions of fact as to Mr. Dennis’s estate’s
excessive force claims against the City of Philadelphia (the
“City”) and Officer Nicoletti; most notably, regarding whether
Mr. Dennis posed a threat to the officers or public safety. The
Court viewed the facts in the light most favorable to Mr.
Dennis and denied Officer Nicoletti qualified immunity. It
held that officer conduct including “sho[oting] at an unarmed
driver attempting to escape at slow speed who had hit a car,”
and/or “using deadly force against an individual driving a car”
when “the driver did not pose a threat to the safety of the officer
or others,” violated clearly established law.
        The thrust of Officer Nicoletti’s challenge to that
determination is unmistakably factual, premised on a
disagreement with the District Court’s ruling that a reasonable




                                4
jury could conclude that Mr. Dennis posed no threat to officer
or pedestrian safety. However, this is an interlocutory appeal
of a denial of qualified immunity and our jurisdiction is
constrained to the review of legal questions only. To the extent
that any of Officer Nicoletti’s arguments could be construed to
articulate a legal challenge to the District Court’s holding that
his conduct violated clearly established law, we will affirm that
holding.

I.     BACKGROUND

       A.      Relevant Facts

        In August 2018, Philadelphia Police obtained a search
warrant for the house where Mr. Dennis resided, suspecting
that the house was being used for drug activity. On August 20,
several officers, including Officer Nicoletti, visited Mr.
Dennis’s house to execute the warrant, but he was not home.
Officers performing the surveillance—Nicoletti, Bogan,
Fitzgerald, Galazka, Sumpter, Sergeant Shuck, and Lieutenant
Muldoon (the “Officers”)—were in plain clothes “to maintain
an advantage” while on the scene. App. at 33. They spotted
Mr. Dennis driving near his house and decided to stop his car.
The description of what happened next is primarily based on
the District Court’s recitation of the facts, supplemented by a
video of the incident that was captured by a nearby surveillance
camera, and is viewed in the light most favorable to Mr.
Dennis. The video reflects the following:

            1. Initiation of the Stop




                                5
       While Mr. Dennis’s vehicle is stopped at a red light at
an intersection on a narrow one-way street, 1 an unmarked
police car pulls up travelling the wrong way and blocks Mr.
Dennis’s path from the front. As the District Court noted, there
were not “any civilian cars or pedestrians in the immediate
vicinity.” App. at 14. 2
       Once blocked in from the front, Mr. Dennis reverses his
car. However, officers had also blocked him in with another
unmarked police car from behind. The front police car then
advances to close him in even more tightly. Although he has
been left very little space within which to maneuver, Mr.
Dennis moves his car forward and back, attempting to free it,
and bumps at slow speed between the unmarked police cars in
front and behind him several times in the process.
       Six of the Officers—Nicoletti, Bogan, Fitzgerald,
Galazka, Sumpter, and Sergeant Shuck—emerge from the
surrounding unmarked cars and approach Mr. Dennis’s vehicle

1
    Officer Nicoletti does not dispute that Sergeant Shuck
“believed this area would be best for civilian and officer
safety” because Mr. Dennis “would have nowhere to go on a
one-way street.” App. at 34.
2
    The video reflects that it is indeed a relatively slow
intersection; two or three cars pass by in the background on the
road perpendicular to the incident throughout the 48-second
interaction. The video shows that several pedestrians stop after
the incident. However, while it is taking place, there are no
pedestrians anywhere near the scene except for a woman who
appears to be watching from the far side of the two-way cross
street throughout and out of harm’s way. The Officers testified
that there were pedestrians just out of view of the camera
around the corner, but they are not visible in the video.




                               6
quickly, most with guns drawn. These officers are not in
uniform. 3 Mr. Dennis again moves his car forward, and
collides slowly with the police car in front of him. Mr.
Dennis’s vehicle does not move for approximately fifteen
seconds, during which time the Officers have their weapons
pointed at him. Officer Fitzgerald appears to try to open the
driver’s side door. The Officers look from the video to be
speaking to Mr. Dennis during this time, though the video has
no sound.
        Officer Galazka then runs over and smashes Mr.
Dennis’s driver’s side window with a metal tool. After the
window is broken, Mr. Dennis begins moving again, haltingly;
he turns his vehicle to the right, in an attempt to creep over the
curb and flee in that direction. Officer Bogan, who was
situated on the passenger side of Mr. Dennis’s vehicle, testified
that at this point he saw Mr. Dennis reach to his right side near
the center console. While Officer Bogan testified that he
“could not see [Dennis’s] hand,” he alerted the other Officers
that Mr. Dennis was “reaching.” App. at 173. None of this is
clearly visible from the video. Mr. Dennis maneuvers his car
further to the right, and Officer Bogan, who was standing on
the sidewalk, steps directly into its path. 4 Mr. Dennis advances
the car forward slowly, and Officer Bogan immediately steps
out of the way.

3
  The District Court’s recitation of the facts did not note that
Officer Sumpter, who is standing behind the cars and out of
Mr. Dennis’s view, is wearing street clothes with a vest that
says “POLICE” on it. App. at 278 – 00:22.
4
   During his deposition, Sergeant Schuck testified that it is a
likely violation of Philadelphia Police directives for an officer
to put himself in front of a moving vehicle.




                                7
          2. Officer Fitzgerald Tries to Grab the Keys

         Officer Fitzgerald then reaches into the broken driver’s
side window to try to grab the keys out of the ignition. 5 Mr.
Dennis reverses his vehicle while Officer Fitzgerald’s arm is
still in it. Officer Fitzgerald does not remove his arm from the
window, and appears to be pulled along with the car as it moves
slowly forward once and backward once, though he remains on
his feet throughout. As the District Court noted, it is difficult
to tell from the video whether Officer Fitzgerald was at any
point “pinned” between Mr. Dennis’s vehicle and the front
police car, as Officer Nicoletti claims. 6 App. at 7. Officer
Fitzgerald jogs away after he abandons his attempt to grab the
keys and stands over to the side away from the action, looking
winded.


5
  During Officer Fitzgerald’s deposition, Mr. Dennis’s counsel
noted that this tactic likely violates [Philadelphia Police
Department] Directive 12.8, which states that “it is highly
recommended that an officer never reach into an occupied
vehicle, in an attempt to shut off the engine, or to recover
evidence, since this has been known to result in serious injury
to officers. Only in exigent circumstances should this tactic be
used, e.g., the driver is unconscious and the motor is still
running.” App. at 108–09. Officer Fitzgerald responded that
he felt this was one such exigent circumstance, given how
“extremely busy” the intersection was. Id. at 109.
6
   From the video alone, it does not appear that the front
unmarked police car was indisputably close enough to do so.
Officer Fitzgerald testified that he yelled from pain and was
transported to the hospital via ambulance, but none of this is
evident from the video.




                               8
       Mr. Dennis backs his car up once more, appearing to be
lining it up to escape to the left. Officer Bogan, who was
previously standing in the vehicle’s way, holsters his weapon
as Mr. Dennis’s car turns away from him. Mr. Dennis
accelerates forward, with slightly more speed than in prior
attempts to elude the Officers. However, the driver of the front
police car simultaneously accelerates towards him in an
attempt to block him, and the cars collide with some force.
Both cars shake from the impact; the dislodged front bumper
of Mr. Dennis’s car—which looks to have been previously
damaged when he drove over the curb—flaps from hitting the
front car. Mr. Dennis’s vehicle comes to a complete stop; it is
abutting the front police car nearly head-on and it does not
appear from the video that it could advance further forward.

          3. Officer Nicoletti Discharges His Weapon

       Officers Fitzgerald and Bogan begin to approach Mr.
Dennis’s vehicle, weapons down, as it has stopped moving and
appears fully stuck. As they are doing so, Officer Nicoletti,
standing directly adjacent to the driver’s side window,
discharges his weapon three times through the side window at
Mr. Dennis. The District Court found that Officer Nicoletti
shot two seconds after the cars collided, that Mr. Dennis’s car
“was pointed away from any of the officers on foot,” and that
no other officers had their guns drawn at the time. 7 App. at 8.
Mr. Dennis was pronounced dead at the scene, and no weapon
was recovered from his vehicle.

7
  This is difficult to confirm solely based on the video, though
Sergeant Shuck—who was standing next to Nicoletti
throughout—had holstered his weapon previously, and he
testified that he was not holding it when Nicoletti discharged.




                               9
       B.     Procedural History

        Plaintiff-Appellee Brad Rush, on behalf of Mr. Dennis’s
estate, brought claims in state court against Officer Nicoletti—
in both his official and individual capacities—for excessive
force under 

, against the City under Monell v.
Department of Social Services, 

 (1978), as well as
state law assault and battery claims. Officer Nicoletti
subsequently removed to the Eastern District of Pennsylvania.
Both Defendants sought summary judgment after discovery,
which the District Court rejected on all counts, except for the
official capacity claim against Officer Nicoletti. Officer
Nicoletti’s timely appeal challenging the denial of his qualified
immunity claim followed. 8 The City did not submit its own
briefs, and merely concurred with those of Officer Nicoletti.

II.    JURISDICTION

        Subject matter jurisdiction in the District Court was
proper under 

 and 1343(a)(3).
        This Court’s jurisdiction to hear Officer Nicoletti’s
appeal is a more complicated affair, as it “depends on whether
we may treat the District Court’s order” denying qualified
immunity “as a ‘final decision.’” Blaylock v. City of Phila.,

 (3d Cir. 2007) (quoting 

).
The collateral order doctrine dictates that “an interlocutory
order of a district court may be treated as a ‘final decision’ if
it: ‘(1) conclusively determine[s] the disputed question, (2)
resolve[s] an important issue completely separate from the

8
   Only Officer Nicoletti filed a notice of appeal; the City did
not, and accordingly entered an appearance as an Appellee in
this matter.




                               10
merits of the action, and (3) [is] effectively unreviewable on
appeal from a final judgment.’” 

 (quoting Johnson v. Jones,

 (1995)) (alteration in original).
        In summary, our jurisdiction over this interlocutory
appeal is limited to resolving legal questions, not factual
questions. See Johnson, 515 U.S. at 316–18. Yet, the bulk of
Officer Nicoletti’s arguments relate to a factual question:
whether the District Court correctly concluded that a
reasonable jury could find that Mr. Dennis posed no threat to
surrounding officers or public safety. While Officer Nicoletti
attempts to invoke an exception to this jurisdictional bar where
contemporaneous video “blatantly contradicts” the facts found
by the District Court, we have reviewed the accompanying
video in this case and see no such contradiction. As such, our
jurisdiction extends only to the legal questions raised in Officer
Nicoletti’s briefs; namely, accepting the District Court’s
definition of his conduct, whether he violated clearly
established law.

       A.     Limited Jurisdiction Over Interlocutory
              Review of Qualified Immunity

       Where an interlocutory order challenges denial of
qualified immunity, a reviewing court has jurisdiction over an
appeal only to the extent that it “raises pure questions of law,”
as opposed to where it “challenges the District Court’s
determination of which facts were sufficiently supported by
evidence.” Blaylock, 

. Put another way, we
cannot consider the factual question of “whether the district
court correctly identified the set of facts that the summary
judgment record is sufficient to prove.” Ziccardi v. City of
Phila., 

, 61 (3d Cir. 2002). However, we may
review the legal question of whether those facts, so assumed,




                               11
are “sufficient to establish a violation of a clearly established
constitutional right.” Id. (citation omitted).
        As the Supreme Court has explained, this is because
where the first prong of the qualified immunity analysis—
determining whether the conduct at issue violated the
Constitution—depends on contested material facts, its
resolution will be functionally inseparable from the merits of
the case. See Johnson, 515 U.S. at 310–11, 318 (citing Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 

 (1993)); Monteiro v. City of Elizabeth, 

 (3d Cir. 2006) (“when qualified immunity depends on
disputed issues of fact, those issues must be determined by the
jury”). Meanwhile, the second prong of the analysis—whether
the conduct violated clearly established law—relates to the
independent issue of immunity and may be determined
separately from the merits. Johnson, 515 U.S. at 311–12; see
also Mitchell v. Forsyth, 

 (1985) (“The
entitlement is an immunity from suit rather than a mere defense
to liability; and like an absolute immunity, it is effectively lost
if a case is erroneously permitted to go to trial.”).
        Relevant to this discussion, the key facts the District
Court identified as sufficient to defeat summary judgment,
which it construed in the light most favorable to Mr. Dennis,
are that:

   • “By the time Officer Nicoletti shot [Mr. Dennis], his car
     had stopped moving, as the City’s own investigation
     concluded. Even if it were moving, no one was in its
     immediate path.”
   • “Although Officer Nicoletti claims that he fired because
     Officer Bogan was in danger, Officer Bogan was on the
     passenger side of the car and had holstered his weapon,
     which suggests he did not perceive a threat to himself.”




                                12
   • “Nor were there any civilian cars or pedestrians in the
     immediate vicinity who Mr. Dennis might have
     threatened.”
   • “Mr. Dennis’s hand motions might have raised a
     concern that he was reaching for a gun, or a factfinder
     could conclude that a reasonable officer would have
     perceived Mr. Dennis to be shifting gears.”

        App. at 13–14. Accordingly, the District Court
concluded that “Mr. Dennis did not pose an immediate threat
to any officer or civilian,” and a reasonable factfinder could
therefore conclude that Officer Nicoletti’s use of lethal force
was not justified. Id. at 13.
        In effect, the District Court determined “that there is
sufficient record evidence to support a set of facts under which
there would be no immunity” for Officer Nicoletti, and, as an
appellate body, “we must accept that set of facts on
interlocutory review.” Blaylock, 

 (citing
Schieber v. City of Phila., 

, 415 (3d Cir. 2003)).
As such, “we may review the District Court’s conclusion that
the defendants would not be immune from liability if those
facts were proved at trial,” as this is a purely legal question. Id.
We will conclude below that the latter analysis is
straightforward under Third Circuit law: if Mr. Dennis proves
the set of facts articulated by the District Court, Officer
Nicoletti would not be immune from suit.

       B.      The Scott v. Harris Exception

       There is one notable—though ultimately inapplicable—
exception to this jurisdictional bar to an appellate court’s
factual review, which is where it finds that the record “blatantly
contradict[s]” a district court’s account of the facts. Scott v.
Harris, 

 (2007). This situation typically




                                13
arises where there is contemporaneous video of the incident,
and may effectively allow a reviewing court to redefine the
conduct at issue in its qualified immunity analysis. Despite
Officer Nicoletti’s protestations to the contrary, we have
performed an independent review of the video in this case, and
the exception does not apply here. We are therefore bound to
accept the version of Officer Nicoletti’s conduct articulated by
the District Court.
        In Scott v. Harris, a police officer rammed the vehicle
of a fleeing motorist, causing the motorist to lose control of his
vehicle and crash. 

. The District Court had
denied the officer qualified immunity, finding a genuine
dispute of material fact as to whether the motorist presented an
immediate threat to the safety of others, and the Eleventh
Circuit affirmed. 

. The Supreme Court reversed,
explaining that “[f]ar from being the cautious and controlled
driver the lower court depict[ed],” a contemporaneous video of
the incident reflected “a Hollywood-style car chase of the most
frightening sort,” and, as such, there was no genuine dispute
that the driver indeed presented an immediate threat to others.

 at 378–80; see also Davenport v. Borough of Homestead,

 (3d Cir. 2017) (reversing as “blatantly
contradicted by the [video] record” district court conclusion
that, based on driver’s version of facts, jury could find that
driver posed no serious threat of immediate harm to others).
This principle was later extended more broadly to where the
district court made “blatantly and demonstrably false” factual
determinations, not solely based on comparison to a
contemporaneous video. Plumhoff v. Rickard, 

, 777–78 (2014) (holding that where record “conclusively
disprove[d]” lower court finding that petitioner posed no threat




                               14
to officers, reviewing court had jurisdiction to redefine the
right at issue to incorporate threat posed by driver). 9
        However, where there is no such “blatant
contradiction,” we lack jurisdiction over factual challenges to
the definition of the right at issue in evaluating qualified

9
  Throughout his briefing, Officer Nicoletti abstractly relies on
Plumhoff as a basis to disregard certain of the District Court’s
findings of disputed material fact—which were based on
review of the contemporaneous video—where they contradict
the Officers’ record testimony. This is an overbroad reading
of Plumhoff, as the Supreme Court there largely looked to
undisputed record facts—for example, that the shooting was
preceded by a car chase at speeds over 100 miles per hour, and
at the time of the discharge the wheels of the driver’s vehicle
were spinning—in disagreeing with the district court as to the
threat posed. 

; Est. of Allen v. City of W.
Memphis, No. 05-2489, 

, at *3 (W.D. Tenn.
Jan. 20, 2011), aff’d in part, 

 (6th Cir. 2012),
rev’d and remanded sub nom. Plumhoff v. Rickard, 

 (2014). Meanwhile, here, the District Court noted that
where “the victim of deadly force is unable to testify,” courts
“should be cautious to ensure that the officer is not taking
advantage of the fact that the witness most likely to contradict
his story—the person shot dead—is unable to testify.” App. at
10 (quoting Abraham v. Raso, 

 (3d Cir.
1999)) (cleaned up). The District Court appropriately
“avoid[ed] simply accepting ‘what may be a self-serving
account by the officer,’” and looked to “circumstantial
evidence that, if believed, would tend to discredit the police
officer’s story, and consider whether this evidence could
convince a rational fact finder that the officer[s] acted
unreasonably.” 

 (quoting Abraham, 

).




                               15
immunity—including as to whether a victim of excessive force
was a threat to officers or the public. See El v. City of
Pittsburgh, 

, 337–38 (3d Cir. 2020) (holding
where appellate review of a contemporaneous video reveals
that “the District Court did not make any demonstrably false
findings about how the events unfolded,” the “narrow” Scott v.
Harris exception does not apply). In El v. City of Pittsburgh,
the District Court had defined the right at issue as the Fourth
Amendment right to be free from unreasonable seizure in the
form of excessive police force where, “during an investigatory
stop for a minor offense, [plaintiff] stands up and takes one or
two small steps towards a police officer, standing a few feet
away, in a non-threatening manner.” 

.
        The officer in El quarreled with this definition—citing,
for example, that one of the victims of excessive force had
pointed at an officer and ignored a gesture to sit back down,
suggesting that the individual was threatening. 

.
However, the majority noted that this was not a fact included
in the District Court’s recitation of the summary judgment
record, and that viewing that gesture as threatening was merely
“one interpretation of what happened.” 

 Having found
specifically that “the District Court’s finding that [plaintiff]
was non-threatening is not blatantly contradicted by the video,”
the majority concluded that an articulation of the right at issue
which would have found the victim of police force to be
threatening, “is not available to us within the limits of our
jurisdiction.” 

 at 337–38.
        Officer Nicoletti invokes the Scott v. Harris exception,
asserting that no jury could find that Mr. Dennis was not a
threat to others. He does this by attempting to construe the
District Court’s determination that Mr. Dennis was not a threat
as a legal conclusion that we have jurisdiction to review.
However, this argument is foreclosed by our precedential




                               16
opinion in El, as he is likewise unable to show that the District
Court made “demonstrably false findings about how the events
[in question] unfolded.” 

. As such, he cannot pry
open the door to factual interlocutory review under the Scott v.
Harris exception. 

       Specifically, Officer Nicoletti asserts that the District
Court’s recitation of the facts—and particularly its ultimate
conclusion that Mr. Dennis did not necessarily pose a threat—
“blatantly contradicts the record and the video.” Nicoletti Br.
at 25. He alleges that these sources irrefutably reflect Mr.
Dennis “violently driving his car backwards and forwards at
officers, damaging two vehicles (in addition to his own),
wrenching the knee of Officer Fitzgerald . . . , and ignoring
unmistakable, repeated, and lawful orders to surrender.” 

Officer Nicoletti also challenges the District Court’s view that
there were no civilian cars or pedestrians in the vicinity, and
that at the time he was shot, Mr. Dennis’s car had stopped
moving and no one was in its immediate path. We disagree
that any of these facts is irrefutably demonstrated from either
the record or the contemporaneous video, viewing them in the
light most favorable to Mr. Dennis. As with El, while Officer
Nicoletti offers merely one of several possible
“interpretation[s]” of the events that unfolded, we are bound to
choose the interpretation most favorable to Mr. Dennis. El,

.
       For example, a reasonable jury could find that Mr.
Dennis was at no point driving violently “at officers.” Nicoletti
Br. at 25. Mr. Dennis was blocked in, had very little space
within which to maneuver his car, and was unable to
meaningfully accelerate at any point. Officers were clearly
able to step out of the way whenever Mr. Dennis’s car was
positioned towards them.




                               17
        We agree with the District Court that the video is also
inconclusive as to what happened to Officer Fitzgerald’s knee;
the view of his lower body is obstructed by Mr. Dennis’s car
in the video, and he does not clearly appear to be limping until
after Officer Nicoletti discharged his weapon.
        The video is also without sound, and while one can
observe the officers’ mouths moving, it is far from undisputed
that Mr. Dennis was aware that the plainclothes officers in
unmarked cars were law enforcement, or that he heard or
understood their “orders to surrender” and elected to ignore
them. Nicoletti Br. at 25.
        The District Court’s conclusion that there were no
pedestrians nearby is also far from demonstrably false. The
single visible pedestrian prior to the discharge is far out of the
way across a broad intersection. Further, while Officer
Nicoletti points to the fact that there are more pedestrians on
the scene after the discharge, a reasonable jury could easily
find this was only due to the attention drawn from the incident
itself.
        Lastly, Officer Nicoletti argues that the video clearly
“shows a dangerous criminal set on escape, recklessly
endangering anyone who might happen by.” Id. at 34.
However, we agree with the District Court’s conclusion that
Mr. Dennis’s car had stopped at the time that shots were fired,
and that Mr. Dennis was not unquestionably “set on escape” at
any cost in the moment before Officer Nicoletti killed him.
        Because we find that the District Court’s recitation of
the facts is not “blatantly contradicted” by the record in this
case, we are not permitted to deviate from those facts in
reviewing its denial of qualified immunity. We must
accordingly accept the District Court’s conclusion that,
viewing the facts in the light most favorable to Mr. Dennis as
the nonmovant, he was not a threat to nearby officers or




                               18
pedestrians. As this bears on the scope of our jurisdiction, we
are confined in this appeal to address only those of Officer
Nicoletti’s arguments that do not challenge this threat
determination. In this case, that leaves whether Officer
Nicoletti’s conduct, so defined, violated clearly established
law. The rest of his disagreements will be left for the jury to
resolve.

III.   ANALYSIS

       A.     Standard of Review

        We exercise plenary review over a district court’s grant
of summary judgment, and we apply the same standard as the
district court. Adams v. Zimmer US, Inc., 

, 163
n.4 (3d Cir. 2019). “Summary judgment is appropriate where,
construing all evidence in the light most favorable to the
nonmoving party, ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.’” Sec’y U.S. Dep’t of Labor v. Kwasny, 

,
90 & n.5 (3d Cir. 2017) (quoting Fed. R. Civ. P. 56(a)). A
genuine issue of material fact is one that could lead a
reasonable jury to find in favor of the nonmoving party. Willis
v. UPMC Children’s Hosp. of Pittsburgh, 

(3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 

 (1986)). To the extent we have jurisdiction under the
collateral order doctrine—for example, over legal questions
like whether conduct violates clearly established law—we
exercise plenary review. See Dougherty v. Sch. Dist. of Phila.,

 (3d Cir. 2014).

       B.     Qualified Immunity




                              19
        At root, Mr. Dennis’s estate claims that Officer
Nicoletti’s use of lethal force was unreasonable under the
Fourth Amendment and that he is liable under 

for damages. “When determining the reasonableness of an
allegedly excessive use of force, the standard is whether the
police officer’s actions were objectively reasonable in light of
the facts and circumstances . . . , regardless of the officer’s
intent or motivation.” El, 

 (quoting Rivas, 365
F.3d at 198) (cleaned up). However, qualified immunity
exonerates even unreasonable officer conduct unless (1) the
officer violated a constitutional right, and (2) the right was
clearly established, “such that ‘it would [have been] clear to a
reasonable officer that his conduct was unlawful.’” Lamont v.
New Jersey, 

 (3d Cir. 2011) (quoting Saucier
v. Katz, 

, 201–02 (2001)) (alteration in original).
        Having sifted through those arguments raised by Officer
Nicoletti that are jurisdictionally barred, we are left with a
relatively straightforward merits question: accepting the
District Court’s factual recitation, was it correct in finding
Officer Nicoletti unentitled to qualified immunity? It was.
       The District Court defined the constitutional right
violated here as the right to be free from unreasonable use of
lethal force, specifically where an officer “sho[ots] at an
unarmed driver attempting to escape at a slow speed who had
hit a car,” and/or “us[es] deadly force against an individual
driving a car,” from the side window while the car was moving
away from the officer, “when the driver did not pose a threat
to the safety of the officer (or others).” App. at 15. It then
found that this right was clearly established. Id. (citing
Abraham, 

; Eberhardinger v. City of York, 

 (3d Cir. 2019); Lamont, 

). We
agree and will affirm the District Court’s denial of qualified
immunity and summary judgment to Officer Nicoletti.




                              20
          1. Constitutional Violation

        Based on the District Court’s recitation of the facts
viewed in the light most favorable to the nonmovant, Officer
Nicoletti conducted an unreasonable seizure of Mr. Dennis
under the Fourth Amendment, and we take no issue with the
District Court’s articulation of the precise constitutional right
he violated. Whether force violates the Fourth Amendment is
determined by the objective reasonableness standard. Rivas,
365 F.3d at 198 (citing Graham v. Connor, 

(1989)).      The factors we consider in determining
reasonableness include “the severity of the crime at issue,
whether the suspect[s] pose[ ] an immediate threat to the safety
of the officers or others, and whether [they are] actively
resisting arrest or attempting to evade arrest by flight.”
Graham, 

. We also look to the “physical injury
to the plaintiff, the possibility that the persons subject to the
police action are themselves violent or dangerous, the duration
of the action, whether the action takes place in the context of
effecting an arrest, the possibility that the suspect may be
armed, and the number of persons with whom the police
officers must contend at one time.” El, 

(quoting Sharrar v. Felsing, 

 (3d Cir. 1997))
(cleaned up).
        The District Court did not explicitly evaluate each of
these factors, but correctly concluded that, taking the facts in
the light most favorable to Mr. Dennis, Officer Nicoletti’s use
of force was unreasonable and therefore violated Mr. Dennis’s
constitutional rights. As discussed above, we find no blatant
contradiction between the District Court’s treatment of the
facts and the contemporaneous video: a jury could conclude
that Mr. Dennis posed no immediate safety threat and was not
violent or dangerous, he was unarmed, was outnumbered six-




                               21
to-one, and he suffered the most severe physical injury
possible—death. As such, Mr. Dennis’s estate has at this point
adequately stated a constitutional violation in the form of an
unreasonable use of force under the Fourth Amendment.
       Further, we reject Officer Nicoletti’s attempts to
redefine the constitutional right at issue here as

       [the] right to be free from unreasonable seizure
       where, at the time, the decedent was already
       lawfully seized by a team of officers established
       by an unmistakable show of authority and
       application of reasonable force against him and
       the vehicle he was operating, was violently
       resisting arrest and attempting to escape the
       lawful custody of the officers, had endangered
       the life and safety of those around him, and was
       in the process of demonstrating his intent to
       continue risking the life and safety of others in
       the area in attempting to flee.

       Nicoletti Br. at 2. As already discussed at length,
Officer Nicoletti’s “preferred articulation of the right at issue
is not available to us within the limits of our jurisdiction”
because it contradicts the District Court’s explicit finding that
several of these factual elements are disputed. El, 

.

          2. Clearly Established Law

       Further, as of August 2018, the right to be free from
unreasonable force in the circumstances at issue here had long
been clearly established under Third Circuit law. Although
there need not be “a case directly on point for a right to be
clearly established, existing precedent must have placed




                               22
the . . . constitutional question beyond debate.” Kisela v.
Hughes, 

 (2018) (per curiam) (quoting
White v. Pauly, 

 (2017)).
         This particular constitutional question has been
“beyond debate” in this Circuit since 1999. This Court in
Abraham v. Raso evaluated an officer’s interaction with a
suspected shoplifter, where, after a brief pursuit on foot, the
suspect returned to his car and tried to back it out of a parking
spot at the mall, hitting another car behind him. 

(3d Cir. 1999). The officer testified that she had to jump out
of the way to dodge the car when it reversed. Id. at 293. She
ran around to the front of the car, and when the suspect lunged
the car forward, she fired a single shot that killed him. Id. at
284. As here, the parties disputed exactly where the officer
was positioned when she shot the suspect—in front or to the
side of the vehicle—and whether he posed a threat to her before
she fired. See id. at 285. This Court found that taking the facts
in the light most favorable to the suspect’s estate, we could not
resolve these questions on summary judgment. Id. at 290. We
noted in denying qualified immunity that “[a] passing risk to a
police officer is not an ongoing license to kill an otherwise
unthreatening suspect.” Id. at 294. 10

10
    Officer Nicoletti correctly points out that Abraham also
espouses the proposition that courts must take a totality of the
circumstances approach to evaluating the threat posed by a
victim of excessive force. Nicoletti Br. at 36 (citing Abraham,

). As such, he advocates that the moment just
before he discharged is too narrow a window from which to
evaluate the threat posed by Mr. Dennis, as a matter of law.
However, the District Court clearly did take the entirety of the
stop into account when evaluating the threat posed by Mr.
Dennis—for example, it acknowledged that Mr. Dennis had,




                               23
        While too recent to serve as “clearly established” law
here, our decision in Jefferson v. Lias underscored the enduring
applicability of Abraham where, “based on the record, [the
district court] was [un]willing to determine that the driver’s
conduct while fleeing was so egregious that it posed an
immediate risk to the officers and the public” sufficient to
justify lethal force. 

 (3d Cir. 2021). In
Jefferson, we left for the jury questions of fact relating to where
the defendant officer stood at the time of discharge and the
extent he was actually in danger of harm by the driver. 

. This was despite that the use of force there followed a high-
speed car chase (which sets forth an arguably more threatening
situation than the one faced both by Officer Nicoletti and the
officer in Abraham). See 

. Having found the officer’s
conduct would violate clearly established law under Abraham
if proved, we also noted that “[o]ther Courts of Appeals [that]
have considered actions where officers have used deadly force
against non-dangerous suspects attempting to evade arrest
while driving have ruled in parallel.” 

 (collecting
cases).



prior to that moment, tried to evade arrest and could have
injured an officer, and that Officer Bogan may have reasonably
thought he was reaching for a gun. These facts were simply
insufficient to change the District Court’s overall calculus
when the entire episode was viewed in the light most favorable
to Mr. Dennis. Further, Officer Nicoletti provides no legal
support for the proposition that the broader context of the stop,
suspicion of selling drugs, necessarily poses a threat to officers
or the public sufficient to justify lethal force.




                                24
        Officer Nicoletti’s cited authorities do not compel a
different conclusion. He points to a series of decisions where
courts found that force was justified because the suspect posed
a threat to nearby officers or the public. Again, even were the
District Court’s determination that Mr. Dennis did not pose a
threat to nearby officers or pedestrians reviewable, these cases
are factually distinguishable.
        Unlike here, where Mr. Dennis’s car was stopped, the
driver’s car in Brosseau v. Haugen was indisputably still
moving while trying to elude capture when an officer shot him
in the back from behind. See 

 (2004). 11 In
Plumhoff v. Rickard, officers suspected that the driver of the
car had hit a pedestrian and the shooting took place after a high-
speed car chase reaching speeds of over 100 miles per hour.

 & n.1. Finally, City and Cnty. of San
Francisco, Calif. v. Sheehan, 

 (2015), and
Kisela, 

, involved individuals brandishing
knives, and City of Tahlequah, Okla. v. Bond, 

, 10–
11 (2021), involved an individual threatening to hit officers
with a hammer.
        These cases fail to present a more analogous factual
situation than Abraham itself, and we agree with the District
Court that the right at issue here was clearly established thereby
for purposes of affirming its denial of qualified immunity.



11
     Although otherwise involving fairly similar facts, the
Supreme Court acknowledged that the incident in Brousseau
occurred before the decision in Abraham, and Abraham
therefore could not have “clearly established” the right
asserted, though the interlude suggests that it otherwise might
have, if published earlier. 

 at 200 n.4.




                               25
IV.   CONCLUSION

       We will accordingly affirm the District Court’s denial
of summary judgment and qualified immunity and remand for
trial.




                             26