Albert James Brown v. Detective Randolph Pfaff, 7060

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2035
________________
ALBERT JAMES BROWN,
Appellant
v.
DETECTIVE RANDOLPH PFAFF, 7060;
DET. THOMAS P. LOONEY, 6677;
POLICE DEPARTMENT OF DELAWARE
____________________________________
On Appeal From the United States District Court
For the District of Delaware
(D.C. Civ. No. 03-cv-00404)
District Judge: Honorable Sue L. Robinson
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
JANUARY 4, 2006
Before: SLOVITER, SMITH AND VAN ANTWERPEN, Circuit Judges.
(Filed: January 6, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Albert Brown sued Detective Randolph Pfaff, Detective Thomas Looney, and the

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1Brown, in his notice of appeal and in his briefs, confines the issues on appeal to
those related to the judgment entered in favor of Pfaff. Therefore, we will not consider
the judgments entered in favor of Looney and the Police Department of Delaware. See In
re Surrick, 338 F.3d 224, 237 (3d Cir. 2003) (holding that the failure to identify or argue
an issue in an opening brief constitutes waiver of that argument on appeal).
Police Department of Delaware, claiming the use of excessive force during the course of
his arrest. In his short complaint, he alleged the following: “Det. Randolph Pfaff, came
runing up to me and slammed, me to the ground as I layed on the Ground. I was brutally
beating in a malicious way.” (Complaint at § IV.) He also contended that Pfaff and
others kicked and dragged him, causing him permanent injury to his right leg. (Id.) He
reported their use of a racial epithet, and their threat that a police dog would bite him if
he moved. (Id.) On Defendants’ motion to dismiss Brown’s complaint for failure to state
a claim, or, in the alternative, a motion for summary judgment, the District Court granted
summary judgment in favor of Looney and the Police Department. After the remaining
parties engaged in discovery, Pfaff moved again for summary judgment, arguing that the
force he used was objectively reasonable in light of the totality of the circumstances, and
that he was entitled to qualified immunity. The District Court granted his motion.
Brown appeals.1
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s grant of summary judgment. See Abramson v. William Paterson
College, 260 F.3d 265, 276 (3d Cir. 2001). We will affirm, because the District Court
properly entered summary judgment in favor of Pfaff, in light of the absence of a genuine
issue of material fact.

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3
Pfaff carried his burden to show that no genuine issue of material fact precluded
judgment in his favor on the excessive force claims. Excessive force claims are judged
under a reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395 (1989). A
court must determine “whether officers’ actions are objectively reasonable, in light of the
facts and circumstances confronting them, without regard to their underlying intent or
motivation.” Id. at 397. Pfaff presented evidence, including affidavits and a transcript of
police radio transmissions, to show that he forced Brown to the ground in response to
reports that a suspect, possibly armed, was fleeing from a house being searched by police.
(Appendix to Pfaff’s Motion for Summary Judgment, at A-13-14, 150-162.) He also
showed that no officer struck, kicked, dragged, or used departmental equipment during
the course of Brown’s arrest. (Appendix to Pfaff’s Motion for Summary Judgment, at A-
151, 154, 156, 158, & 160.) He also submitted evidence that Brown did not complain of
injuries at the time of his arrest or shortly thereafter. (Id. at A-79-80, 154, 156, & 162.)
In response to Pfaff’s motion, Brown did not present any evidence to support his
claim. He mostly rested on the allegations of his complaint. Without substantiation, he
claimed that Pfaff fabricated the police radio transmissions. Similarly, he argued that a
deputy attorney general forged the signatures on the affidavits used by Pfaff. To the
extent that he disputed the evidence, he claimed that the statements in Pfaff’s affidavit
constituted perjury because they differed from Pfaff’s testimony at Brown’s preliminary
hearing and trial. He also contended that the radio transcript did not describe him as the

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2In addition, Brown had a watch in his hand (Appellant’s Brief at 5), which Pfaff
could have mistaken for a weapon.
4
armed suspect.
Based on facts and circumstances of Brown’s arrest, as described by Pfaff and not
disputed with competent proof by Brown, Pfaff’s actions were objectively reasonable.
Pfaff did not use excessive force when he tackled Brown, who was attempting to evade
capture. Although a careful analysis of the radio transcript reveals that another suspect,
not Brown, was described as armed, the police radio transmissions must be viewed in the
context of a chaotic police scene, not with the clarity of hindsight. See Graham, 490 U.S.
at 396.2 Also, despite Brown’s argument that Pfaff perjured himself, Pfaff’s affidavit is
not starkly at odds with his previous testimony. (Appendix to Pfaff’s Motion for
Summary Judgment, at A-38-46, 70-72, 150-152.) Furthermore, although inconsistencies
exist, the appreciable difference is the greater detail used in the affidavit to describe
Brown’s arrest. (Id.)
In sum, there is no evidence on which a reasonable juror could base a finding that
Pfaff used excessive force in arresting Brown. Furthermore, as the District Court
concluded, in the absence of proof of a constitutional violation, Pfaff was entitled to
qualified immunity from Brown’s claim of excessive force. For these reasons, we will
affirm the District Court’s order.

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