TONYA L. CARSWELL, Administratrix of the Estate of GILBERT CARSWELL, deceased, on… v. Borough of Homestead

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03-2290
TONYA L. CARSWELL, Administratrix
of the Estate of GILBERT CARSWELL,
deceased, on behalf of the Estate of
GILBERT CARSWELL, deceased and
TONYA L. CARSWELL, Administratrix
of the Estate of GILBERT CARSWELL,
deceased on behalf of the NEXT OF KIN
of GILBERT CARSWELL, deceased,
Appellant
v.
BOROUGH OF HOMESTEAD; MARK
ZUGER, CHIEF OF POLICE OF THE
BOROUGH OF HOMESTEAD;
FRANK SNYDER
____________
APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT
OF PENNSYLVANIA
(D.C. Civ. No. 00-cv-01184 )
District Judge: Honorable Robert J.
Cindrich
____________
Argued May 11, 2004
Before: NYGAARD, McKEE, and
WEIS, Circuit Judges.
Filed : August 20, 2004
_____________
Charles E. Evans, Esquire (ARGUED)
Evans, Portnoy, Quinn & O’Connor
36th Floor, One Oxford Centre
301 Grant Street
Pittsburgh, PA 15219-6401
Attorneys for Appellant
David J. MacMain, Esquire (ARGUED)
Montgomery, McCracken, Walker &
Rhoads, LLP
123 South Broad Street
Philadelphia, PA 19109-1090
Attorneys for Appellee Frank Snyder
Paul D. Krepps, Esquire (ARGUED)
Audrey J. Copeland, Esquire
Marshall, Dennehey, Warner, Coleman
and Goggin
18 Campus Blvd., Suite 250
Newtown Square, PA 19070
Attorneys for Appellees Borough of
Homestead and Police Chief Mark Zuger
____________
OPINION
WEIS, Circuit Judge.

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In suits under 42 U.S.C. § 1983 for
damages against government officials for
violation of constitutional rights, the
Supreme Court recommends that the
courts rule on the constitutional issue
before reaching qualified immunity. In
this case, after hearing all of the plaintiff’s
evidence at trial, the District Court
assumed, but did not decide whether a
constitutional violation had occurred and
then granted immunity to a police officer.
In the circumstances of this case, we
conclude that this procedure was not
reversible error and we will affirm on the
merits of the immunity ruling.
Gilbert Carswell, the plaintiff’s
husband, was fatally shot by a Homestead
Borough patrolman in the course of
apprehension by the police. Plaintiff
brought suit pursuant to 42 U.S.C. § 1983
alleging that her husband’s death was the
result of constitutional violations by
Officer Frank Snyder, Police Chief Mark
Zuger, and the Borough of Homestead.
The District Court declined to grant
qualified immunity on summary judgment,
reasoning that factual disputes existed at
that time. At trial, after the plaintiff had
rested at the end of her case, the District
Court granted judgment to the defendants
as a matter of law pursuant to Fed. R. Civ.
P. 50.
The tragic death of Gilbert Carswell
was the culmination of months of domestic
discord. After three and one-half years of
marriage, plaintiff and the decedent-
husband became estranged. In July 1999,
some four months before the shooting
occurred, the plaintiff applied to the state
court for a protection from abuse order
(“PFA”)1 because her husband presented
“an immediate and present danger of
abuse” to her and their children. Soon
afterward, the Homestead Police went to
1 Under the Pennsylvania
Protection from Abuse Act, a plaintiff
may obtain a PFA by (1) agreement with
the defendant, (2) obtaining a default
judgment or (3) proving the allegation of
abuse by a preponderance of the
evidence at a hearing. See 23 Pa. Cons.
Stat. Ann. § 6107 (West 2001); 23 Pa.
Cons. Stat. Ann. § 6108 (West 2004). At
a minimum, a plaintiff must have a
reasonable fear of bodily injury to obtain
a PFA. See 23 Pa. Cons. Stat. Ann. §
6102 (West 2001). One of the typical
hallmarks of a PFA is the prohibition on
contact between the plaintiff and
defendant. 23 Pa. Cons. Stat. Ann. §
6108(a)(6).
The statute requires the
court to issue a PFA to the police
department with appropriate jurisdiction
to enforce the order, as well as the state
police. Police officers may arrest a
defendant for violating a PFA without a
warrant upon probable cause, whether or
not the violation occurred in their
presence. 23 Pa. Cons. Stat. Ann. §
6113(a) (West 2001). A defendant who
violates a PFA and is convicted of
indirect criminal contempt is subject to
imprisonment of up to six months. 23
Pa. Cons. Stat. Ann. § 6114 (b) (West
2001).

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the family residence when the husband,
despite the PFA, came to the home and
punched the plaintiff.
On July 27, 1999, plaintiff applied
for a second PFA, asserting that her
husband had ripped the telephone from the
wall, broken a table, threatened to hit her
and sexually assaulted her. In early
August, the police were called to the home
when the husband struck the plaintiff in
the face with his fist.
The plaintiff filed an indirect
criminal complaint on October 10, 1999
because her husband threatened to kick her
and pistol-whip her brother. One week
later, the police were summoned because
the husband had once again violated the
PFA. In evading apprehension, he
rammed a police car. As a consequence, a
felony warrant was issued for his arrest.
On the evening of November 17
and the early morning hours of November
18, 1999, the husband entered the home on
four separate occasions. He broke a
window to gain admittance, ransacked the
kitchen, and smashed the television set.
On each occasion, the police came to the
scene, but were unsuccessful in attempts to
capture him.
After the second incident, plaintiff
and a teenage girl, who was staying at the
house, armed themselves with butcher
knives. After the third entry, a patrolman
remained in the house for an hour to
provide security for the plaintiff.
Moreover, the police decided that their
previous shift would remain on duty
together with the oncoming officers
because of concern that the husband would
return.
After the fourth entry which
occurred at 12:40 a.m., the police again
responded, but the husband escaped. To
protect plaintiff, Officer Shipley remained
in the home, as he had earlier, while other
officers set up a perimeter in the area.
The husband was spotted at 2:10
a.m. by a police officer who radioed the
information to the law enforcement
personnel in the area. Two other officers,
responding to the alert, cornered the
husband on the porch of a home nearby.
One of the policemen drew his gun,
confronted the husband, and ordered him
to lie on the floor. He raised his hands in
a surrender gesture, but then suddenly
jumped over the porch railing and ran into
the darkness.
On hearing that the husband had
been sighted, Officer Shipley left the
family home and joined in the pursuit. He
was standing in Boone Way, a narrow
alley, when he saw the husband jump from
the roof of a garage on the south side of
the roadway. The husband then ran in a
westerly direction with Shipley in pursuit.
At this point, defendant Snyder
turned his police car into Boone Way from
an intersecting street west of the garage.
He saw the husband some 20-30 feet away,
running toward the cruiser. Snyder
stopped his car somewhat diagonally
across the alley and got out on the left side,
leaving the door open. The headlights were
on as were the lights in the cruiser’s
overhead bracket directed toward each side

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of the alley.
Snyder then went to the right of his
car about 2-3 feet behind the rear bumper.
Despite orders to stop, the husband
continued to run toward the police car,
with hands extended in front of him at
shoulder height, the palms pointed
forward. Snyder could see that the
husband’s hands were empty when he
reached the front of the patrol car.
As he took a firing position at the
rear of his car, Snyder took off the safety
on his gun. He fired when, according to
the plaintiff’s expert’s testimony, the
husband’s chest was 24-36 inches from the
gun’s muzzle and the palm of his left hand
was 12-24 inches away from the muzzle.
The one shot that was fired entered the
husband’s chest in the center, struck the
heart and exited on the extreme left of his
back.
The Borough did not provide
Snyder with a baton or pepper spray, nor
were they required. The use of these non-
lethal weapons was permitted, but only
after an officer had successfully completed
applicable familiarization programs.
Snyder had not received such training and
was armed only with a gun.
Plaintiff introduced portions of
Snyder’s discovery deposition into
evidence, including a statement that he did
not know that the husband was unarmed.
Further, given the facts and evidence that
he had at the time, Snyder believed the
husband may have had a weapon on his
person. Snyder also said that if he had
had non-lethal weapons in his possession,
he would not have pulled his gun from the
holster. He further testified that he
graduated from the police academy before
being hired, and had attended yearly
refresher courses provided by the
Commonwealth of Pennsylvania.
Plaintiff called Dr. R. P. McCauley,
a criminologist, to describe proper police
procedures. He stated that “knowing that
the guy was unarmed, a police officer
should not have drawn his weapon from
the holster, but should have pushed,
tackled, or tripped the fleeing suspect.”
Police Chief Zuger testified that the
manual for Borough officers cautioned
them about the use of deadly force and the
continuum that was to be followed. He
also explained that there was no
requirement that officers become qualified
to use pepper spray or a baton. Zuger said
further that Snyder had been an officer for
14 years and that there had never been a
complaint against him.
After the plaintiff rested, the
defendants moved for judgment as a
matter of law under Fed. R. Civ. P. 50.
The district judge, referring to Saucier v.
Katz, 533 U.S. 194 (2001), stated that in
ruling on qualified immunity, he would
view the facts in the light most favorable
to the plaintiff. He therefore assumed that
the shooting was intentional and not
accidental, but that he was not required to
decide whether the officer’s conduct was
right or wrong. Rather, the issue was
whether it was clear what a reasonable
officer would have done and, if that was
not established, the policeman was entitled

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to immunity. In the circumstances present,
the court determined that Officer Snyder
was entitled to qualified immunity and
entered judgment in his favor.
The court further ruled that there
was no evidence to fasten personal liability
on defendant Zuger. As to him, in his
official capacity, the grant of immunity to
Snyder relieved Zuger as well as the
Borough from liability. In addition, the
trial judge found that nothing in the
Constitution required a municipality, or its
police department, to maintain a list of
particularized type of equipment that must
be furnished to its officers. The failure to
provide non-lethal weapons did not rise to
a constitutional level.
On appeal, plaintiff argues that the
District Court erred in granting judgment
for defendant Snyder because there were
disputes over material facts and questions
as to his credibility. Moreover, plaintiff
asserts that Homestead and Chief Zuger
should not have been automatically
dismissed because Snyder was granted
immunity. Snyder defends the District
Court’s ruling and asserts as an alternate
basis for affirmance that the plaintiff failed
to establish a violation of a constitutional
right.
I.
Fed. R. Civ. P. 50(a)(1) provides
that during a jury trial, if “a party has been
fully heard on an issue and there is no
legally sufficient evidentiary basis for a
reasonable jury to find for that party on
that issue, the court may determine the
issue against that party and may grant a
motion for judgment as a matter of law
against that party with respect to a claim
. . . that cannot under the controlling law
be maintained . . . without a favorable
finding on that issue.” In ruling on that
motion, the court construes disputed issues
of fact in a light most favorable to the non-
movant. Northview Motors, Inc. v.
Chrysler Motors Corp., 227 F.3d 78, 88
(3d Cir. 2000).
II.
Use of excessive force by a law
enforcement officer is considered a
“seizure” under the Fourth Amendment,
which prohibits such unlawful action.
Graham v. Connor, 490 U.S. 386, 395
(1989); Tennessee v. Garner, 471 U.S. 1, 7
(1985). The test is an objective one, which
scrutinizes the reasonableness of the
challenged conduct. The facts to be
examined include “the severity of the
crime at issue, whether the suspect poses
an immediate threat to the safety of the
officer or others, and whether he is
actively resisting arrest or attempting to
evade arrest by flight.” Graham, 490 U.S.
at 396. Reasonableness is to be evaluated
from the “perspective of a reasonable
officer on the scene, rather than with the
20/20 vision of hindsight.” Id.
In Tennessee v. Garner, 471 U.S. at
11, the Court phrased the test as follows:
“[w]here the officer has probable cause to
believe that the suspect poses a threat of
serious physical harm, either to the officer
or to others, it is not constitutionally
unreasonable to prevent escape by using
deadly force.” In Garner, a fleeing teenage

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burglar was shot and killed by a policeman
who never attempted to defend his action
on any basis other than the need to prevent
an escape, a justification the Court refused
to accept.
Here, the District Court did not
make a specific finding that the plaintiff’s
evidence established a constitutional
violation, but pragmatically “assumed”
that for purposes of the Rule 50 motion
such a showing had been made. The court
then moved onto the issue of whether
Officer Snyder was entitled to qualified
immunity.
The court was fully aware of
Saucier’s explanation of the difference
between the determination of excessive
force in the constitutional sense and the
ruling on qualified immunity. Comments
made by the trial judge during argument on
the Rule 50 motion leave no doubt on that
score. That he reviewed the evidence
bearing on the Fourth Amendment issue
favorably to the plaintiff was apparent.
The judge stated that “the
constitutional violation requires an
intentional deprivation of rights and for
these purposes then we are going to
assume that the shooting was intentional.”
Later in the colloquy he commented, “. . .
I’m not sure that it wasn’t [a situation]
where he [the officer] was justified in
using deadly force.”
Our appellate review of a Rule 50
ruling is plenary and is similar to that in a
summary judgment appeal. We review the
record as would a District Court. This
scope of appellate review places us in the
same position as the District Court with
respect to the admonition in Siegert v.
Gilley, 500 U.S. 226 (1991) and Saucier to
decide the constitutional issue before
considering qualified immunity. See, e.g.,
Bell v. Johnson, 308 F.3d 594 (6th Cir.
2002).
It is quite understandable that the
trial judge was hesitant to rule that a
constitutional violation had occurred on
the facts in the record at that point when
the qualified immunity issue offered a
more sure-footed disposition of the Rule
50 motion. Here, unlike Saucier and
Siegert, the case had already been in trial
for a week. Consequently, Snyder had
already lost much of the benefit of
qualified immunity – freedom from trial.
See, e.g., Bennett v. Murphy, 274 F.3d
133, 136 (3d Cir. 2002).
It is preferable to resolve the
qualified immunity issue at the summary
judgment, or earlier, stage, but if this is not
possible, it remains appropriate to consider
the matter in a Rule 50(a) motion. See,
e.g., Ehrlich v. Town of Glastonbury, 348
F.3d 48, 49 (2d Cir. 2003); Johnson v.
Breeden, 280 F.3d 1308, 1317 (11th Cir.
2002).
The Court of Appeals in Siegert
approved the grant of immunity on
summary judgment, but the Supreme Court
affirmed by determ ining th at no
constitutional violation had occurred.
Seigert, 500 U.S. at 230-35. Saucier held
that the defendant was entitled to qualified
immunity, and it reversed the Court of
Appeals’ decision, which had denied

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qualified immunity at the summary
judgment stage because a material factual
dispute existed. Saucier, 533 U.S. at 199,
209. Those procedural differences with
the case before us are not dispositive, but
they are factors that have some bearing.
We believe that the circumstances
here, however, are sufficiently unlike those
in Saucier and Siegert that we may
proceed directly to the qualified immunity
issue without ruling preliminarily on the
constitutional violation claim. See
Ehrlich, 348 F.3d at 55-60. We are
hesitant to hold that the jury could find
excessive force based on the record here.
It appears to us that without the
testimony of Dr. McCauley, the plaintiff
failed to establish a constitutional
violation. See Cowan ex rel. Estate of
Cooper v. Breen, 352 F.3d 756 (2d Cir.
2003) (expert opinion was part of
plaintiff’s excessive force record). We
have serious doubts about the admissibility
of his opinion that Snyder should not have
drawn his gun based on the expert’s
assumption that the officer knew the
husband was unarmed.
We recognize that expert opinions
can be redacted from the record on appeal
where they are found to be inadmissible
and the court may then proceed to enter
judgment based on the remaining
evidence. Weisgram v. Marley Co., 528
U.S. 440 (2000). In Weisgram, however,
the admissibility of the expert testimony
had been the focal point of appeal and had
been thoroughly briefed and argued. In
contrast here, the expert opinion issue has
not been briefed on appeal. In such a
setting we are most reluctant to undertake
an analysis sua sponte. See Garner, 471
U.S. at 22 (“As for the policy of the Police
Department, the absence of any discussion
of this issue by the courts below, and the
uncertain state of the record, preclude any
c o n si d e r a ti o n o f i t s v a l i d it y. ” ).
Accordingly, we assume, but do not
decide, that plaintiff established a Fourth
Amendment constitutional violation and
proceed to the immunity issue.
III.
An officer sued for a violation of
constitutional rights may be entitled to the
defense of qualified immunity, that is, an
exemption from trial as well as from
liability for the alleged wrong. Saucier,
533 U.S. at 200; Garner, 471 U.S. 1;
Harlow v. Fitzgerald, 457 U.S. 800 (1982).
The formula for analyzing a qualified
immunity claim is a several stage process.
First, the court is to decide whether a
constitutional violation has occurred, and
then it must “‘proceed to determine
whether that right was clearly established
at the time of the alleged violation.’”
Wilson v. Layne, 526 U.S. 603, 609 (1999)
(quoting Conn v. Gabbert, 526 U.S. 286,
290 (1999)). A defendant “may . . . be
shielded from liability for civil damages if
[his] actions did not violate ‘clearly
established statutory or constitutional
rights of which a reasonable person would
have known.’” Hope v. Pelzer, 536 U.S.
730, 739 (2002) (quoting Harlow, 457

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U.S. at 818).
“For a constitutional right to be
clearly established, its contours ‘must be
sufficiently clear that a reasonable official
would understand that what he is doing
violates that right.’” Id. (quoting
Anderson v. Creighton, 483 U.S. 635, 640
(1987)). See also Groh v. Ramirez, ___
U.S. ___, 124 S.Ct. 1284 (2004)
(explaining that whether immunity is
available depends on whether the
c o n s t it u t io n a l right w a s c l e ar ly
established.); Saucier, 533 U.S. at 202
(noting that the relevant inquiry is
“whether it would be clear to a reasonable
officer that his conduct was unlawful in
the situation he confronted.”).
Once these requirements are found
to have been satisfied, the inquiry proceeds
to another, closely related issue, that is,
whether the officer made a reasonable
mistake as to what the law requires.
Saucier emphasized that the inquiry for
qualified immunity eligibility is distinct
from establishment of a constitutional
violation of excessive force. As the Court
explained, “[t]he concern of the immunity
inquiry is to acknowledge that reasonable
mistakes can be made as to the legal
constraints on particular police conduct
. . . [i]f the officer’s mistake as to what the
law requires is reasonable, however, the
officer is entitled to the immunity
defense.” Saucier, 533 U.S. at 205.
Qualified immunity operates to
“protect officers from the sometimes ‘hazy
border between excessive and acceptable
force.’” Id. at 206. (quoting Priester v.
City of Riviera Beach, 208 F.3d 919, 926-
27 (11th Cir. 2000)). Furthermore, “in
addition to the deference officers receive
on the underlying constitutional claim” in
excessive force cases, “qualified immunity
can apply in the event the mistaken belief
was reasonable.” Id. We have followed
this doctrine in excessive force claims
where the police shot a citizen. See, e.g.,
Bennett, 274 F.3d 133; Curley v. Klem,
298 F.3d 271 (3d Cir. 2002); Henry v.
Perry, 866 F.2d 657 (3d Cir. 1989).
The importance of the factual
background raises the question of whether
the decision as to the applicability of
qualified immunity is a matter for the court
or jury. The Courts of Appeals are not in
agreement on this point. We held in Doe
v. Groody, 361 F.3d 232, 238 (3d Cir.
2004), that qualified immunity is an
objective question to be decided by the
court as a matter of law. See also
Bartholomew v. Pennsylvania, 221 F.3d
425, 428 (3d Cir. 2000). The jury,
however, determines disputed historical
facts material to the qualified immunity
question. See Sharrar v. Felsing, 128 F.3d
810, 828 (3d Cir. 1997). District Courts
may use special interrogatories to allow
juries to perform this function. See, e.g.,
Curley, 298 F.3d at 279. The court must
make the ultimate determination on the
availability of qualified immunity as a
matter of law. See Curley, 298 F.3d at
279; Sharrar, 128 F.3d at 828 (citing
Hunter v. Bryant, 502 U.S. 224 (1991)).
Several other Courts of Appeals have

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adopted a standard similar to ours.2 In
contrast, other Courts of Appeals have
held that District Courts may submit the
issue of qualified immunity to the jury.3
All of the events leading up to the
pursuit of the suspect are relevant. See
Abraham v. Raso, 183 F.3d 279, 292 (3d
Cir. 1999). The question is whether, in the
circumstances here, it would have been
clear to a reasonable officer that Snyder’s
conduct was unlawful in the situation he
confronted. If it would not have been
clear, then qualified immunity is
appropriate.
If the wrongfulness of the officer’s
conduct would have been clear, we must
then determine whether he made a
reasonable mistake. “[W]here there is ‘at
least some significant authority’ that lends
support of the police action, we have
upheld qualified immunity even while
deciding that the action in question
violates the Constitution.” Groody, 361
F.3d at 243 (internal citation omitted)
(quoting Leveto v. Lapina, 258 F.3d 156,
166 (3d Cir. 2001)). See also In re City of
Philadelphia Litig., 49 F.3d 945, 970 (3d
Cir. 1995).
A survey of the circumstances
known to Snyder is necessary to properly
apply this test. After he arrived on duty as
the officer in charge he had been given
reports on the events at the plaintiff’s
home. He was aware that the husband had
violated the PFA four times within the past
several hours and that it was thought
prudent to have an officer remain in the
house to ease the fears of plaintiff, who
had armed herself with a knife. Snyder
was also in radio contact with the other
officers who were in pursuit of the
husband.
Before the shooting occurred, the
husband had escaped from an armed
policeman and the chase was still
underway with a number of officers in
pursuit. The husband was running at full
speed directly toward Snyder’s police
cruiser. Ignoring orders to stop, the
husband kept charging at the officer who
held his fire until the muzzle of his gun
was two feet away from the husband.
Although after the shooting it was
determined that the husband was unarmed,
2 See, e.g., Rivera-Jimenez
v. Pierluisi, 362 F.3d 87, 95 (1st Cir.
2004); Stephenson v. Doe, 332 F.3d 68,
80-81 (2d Cir. 2003); Knussman v.
Maryland, 272 F.3d 625, 634 (4th Cir.
2001); Warlick v. Cross, 969 F.2d 303,
305 (7th Cir. 1992) Johnson v. Breeden,
280 F.3d 1308, 1318 (11th Cir. 2002).
3 See, e.g., McCoy v.
Hernandez, 203 F.3d 371, 376 (5th Cir.
2000); Fisher v. City of Memphis, 234
F.3d 312, 317 (6th Cir. 2000); Turner v.
Arkansas Ins. Dept., 297 F.3d 751, 754
(8th Cir. 2002); Ortega v. O’Connor, 146
F.3d 1149, 1155-56 (9th Cir. 1998);
Maestas v. Lujan, 351 F.3d 1001, 1007-8
(10th Cir. 2003). But see Peterson v. City
of Plymouth, 60 F.3d 469, 475 (8th Cir.
1995)(explaining that qualified immunity
is ultimately a question of law and that
“[t]he jury’s role is limited to settling
disputes as to predicate facts”).

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Snyder denied that he knew that at the time
and there was no evidence to the contrary.
In these circumstances a reasonable
officer could believe that firing at the
suspect was a proper response. A
reasonable officer would not be expected
to take the risk of being assaulted by a
fleeing man who was so close that he
could grapple with him and seize the gun.
Our recitation of these events is a
discussion in slow motion of an incident
that took place in a matter of seconds.
Officer Snyder had no time for the calm,
thoughtful deliberation typical of an
academic setting.
The plaintiff’s expert, Professor
McCauley, thought that Snyder should not
have pulled his gun but rather should have
chosen to tackle or otherwise physically
subdue the suspect. The expert’s opinion
did not refer to the question of mistake and
consequently there is no dispute of fact.
Curley, 298 F.3d at 279. In any event, this
is a question of law to be decided by the
court as a matter of law, Groody, 361 F.3d
at 238, rather than by expert opinion. See
Peterson v. City of Plymouth, 60 F.3d 469,
475 (8th Cir. 1995) (expert opinion not fact
based but only a legal conclusion).
We conclude that at most Synder’s
conduct was a mistake that was reasonable
under the circumstances. As Smith v.
Freland, 954 F.2d 343, 347 (6th Cir. 1992),
said, “[w]e must never allow the
theoretical, sanitized world of our
imagination to replace the dangerous and
complex world that policemen face every
day. What constitutes ‘reasonable’ action
may seem quite different to someone
facing a possible assailant than to someone
analyzing the question at leisure.”
We are not persuaded that Officer
Snyder made a mistake in the use of his
weapon, but even if it was an error, it was
such as a reasonable officer could have
made. Consequently, the District Court’s
entry of judgment in favor of defendant
Snyder will be affirmed.
IV.
Having held that Officer Snyder
was entitled to qualified immunity, the
District Court determined that it was
obligated to grant judgment as a matter of
law in favor of the Borough and Chief
Zuger. We reach the same conclusion, but
do so for different reasons.
Because as a predicate to its
decision on immunity, the court had
assumed that Snyder had committed a
cons titutional viola tion, we must
determine whether the Borough or police
chief were liable for that violation. Based
on our review of the record, we conclude
that the plaintiff failed to present evidence
from which a reasonable jury could find
liability on the part of these defendants.
A municipality cannot b e
responsible for damages under section
1983 on a vicarious liability theory,
Monell v. New York City Dept. of Soc.
Servs., 436 U.S. 658, 694-95 (1978), and
“can be found liable under § 1983 only
where the municipality itself causes the
constitutional violation at issue.” City of

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Canton v. Harris, 489 U.S. 378, 385
(1989). District Courts must review
c l a i m s o f m u n i c i p a l l i a b i l i t y
“independently of the section 1983 claims
against the individual police officers.”
Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d
Cir. 1996); Fagan v. City of Vineland, 22
F.3d 1283, 1294 (3d Cir. 1994).
The plaintiff’s municipal liability
claim can be divided into two categories:
(1) failure to properly train its police
officers in the constitutional use of deadly
force and (2) failure to equip police
officers with alternatives to lethal
weapons.
A plaintiff must identify a
municipal policy or custom that amounts
to deliberate indifference to the rights of
people with whom the police come into
contact. City of Canton, 489 U.S. at 388.
This typically requires proof of a pattern of
underlying constitutional violations. Berg
v. County of Allegheny, 219 F.3d 261, 276
(3d Cir. 2000). Although it is possible,
proving deliberate indifference in the
absence of such a pattern is a difficult task.
See id.
In addition to proving deliberate
indifference, a plaintiff must also
demonstrate that the inadequate training
caused a constitutional violation. See
Grazier v. City of Philadelphia, 328 F.3d
120, 124-25 (3d Cir. 2003). There must be
“a direct causal link between a municipal
policy or custom and the alleged
constitutional deprivation.’” Brown v.
Muhlenberg Township, 269 F.3d 205, 214
(3d Cir. 2001) (quoting City of Canton,
489 U.S. at 385).
The record here fails to establish
deliberate indifference or causation. Chief
Zuger testified that officers attend annual
in-service courses, where they study,
among other subjects, relevant court
opinions. Officer Snyder testified that he
was present at these sessions. Zuger
updated the Homestead police manual in
1997 and directed his officers to become
familiar with the updated policy manual,
which covered the “continuum of force.”
This evidence did not establish a
lack of training on the use of deadly force
that amounted to a deliberate indifference,
nor does it demonstrate a pattern of
underlying constitutional violations that
should have alerted Homestead to an
inadequate training program. The record
does not meet the high burden of proving
deliberate indifference, nor does it show
that Homestead’s actions caused a
constitutional violation. We conclude that
the plaintiff failed to present evidence
from which a reasonable jury could find
municipal liability.
Furthermore, we have never
recognized municipal liability for a
constitutional violation because of failure
to equip police officers with non-lethal
weapons. We decline to do so on the
record before us. In Plakas v. Drinski, 19
F.3d 1143, 1150-51 (7th Cir. 1994), the
Court of Appeals for the Seventh Circuit
rejected the claim that a county had
violated a suspect’s constitutional rights by
failing to equip its police officers with
alternatives to deadly force. In holding

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12
that the constitution does not mandate the
types of equipment a police department
must provide to its officers, the court
explained:
“We do not think it is wise
policy to permit every jury
in these cases to hear expert
testimony that an arrestee
would have been uninjured
if only the police had been
able to use disabling gas or
a capture net or a taser (or
even a larger number of
police officers) and then
decide that a municipality is
liable because it failed to
buy this equipment (or
increase its police force).
There can be reasonable
debates about whether the
Constitution also enacts a
code of criminal procedure,
but we think it is clear that
the Constitution does not
e n a c t a p o l i c e
administrator’s equipment
list.” Plakas, 19 F.3d at
1150-51 (footnote omitted).
See also Salas v. Carpenter, 980 F.2d 299,
310 (5th Cir. 1992).
The Supreme Court has not yet
ruled in a case similar to Plakas, but
language in the failure-to-train cases is
pertinent. In City of Canton, 489 U.S.
392, we read: “In virtually every instance
where a person has had his or her
constitutional rights violated by a city
employee, a § 1983 plaintiff will be able to
point to something the city ‘could have
done’ to prevent the unfortunate incident.”
Permitting a lesser standard than deliberate
indifference would “engage the federal
courts in an endless exercise of second-
guessing municipal employee training
programs. This is an exercise we believe
the federal courts are ill suited to
undertake as well as one that would
implicate serious questions of federalism.”
City of Canton, 489 U.S. at 392.
Mandating the type of equipment
that police officers might find useful in the
performance of their myriad duties in
frequently unanticipated circumstances is
a formidable task indeed. It is better
assigned to municipalities than federal
courts.
We conclude that the judgment as a
matter of law in favor of the Borough and
Chief Zuger as well as that in favor of
Snyder must be affirmed.
Estate of Carswell v. Borough of
Homestead et al., No. 03-2290
McKee, J., concurring as to parts I, II, and
III and dissenting as to part IV.
I join Parts I, II and III of the
majority opinion because I agree that
Officer Snyder is entitled to qualified
immunity as a matter of law. I also agree
that the District Court did not err
analytically in assuming arguendo that a
constitutional violation had occurred.4
4 Cf. Grabowski v. Brown,
922 F.2d 1097, 1110 (3d Cir. 1991), cert.

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13
However, I must respectfully dissent from
part IV of the majority opinion because I
think that, viewed in the light most
favorable to plaintiff, the evidence
establishes a prima facie case of liability
against the Borough of Homestead and
against Homestead Police Chief M ark
Zuger in his official capacity (collectively
hereafter referred to as the “Borough”).5
I.
This case illustrates all too clearly
the daily reality in which police officers
often have to make split-second, life-and-
death, decisions. The doctrine of qualified
immunity recognizes that reality and
protects police from liability that might
otherwise arise from the “sometimes hazy
border between excessive and acceptable
force[.]” Saucier v. Katz, 533 U.S. 194,
206 (2001) (internal quotation marks and
citation omitted). We evaluate whether an
officer’s conduct was reasonable, and thus
whether the officer is entitled to qualified
immunity, based upon the officer’s
perspective at the time he/she acted.
Graham v. Connor, 490 U.S. 386, 396
(1989). We thereby avoid the inequities
that might result from the 20/20 vision that
comes with hindsight. Id.
Here, however, the usual concerns
about judging an officer’s use of force
from the perspective of hindsight are not
present because our analysis has the
benefit of Officer Snyder’s candid
testimony. He testified that he saw
nothing in Carswell’s hands as Carswell
ran toward him. App. at 1061a.6 He was
then asked, “Had you had non-lethal
weapons, you would not have pulled your
gun [as Carswell ran towards you], am I
correct?” He responded, “Yes.” Id. at
1064a. That testimony would allow a jury
to conclude that Officer Snyder used
excessive force in fatally shooting
Carswell and that he did so knowingly.
As the majority ably discusses, the
fact that a jury could conclude that Snyder
used excessive force to subdue Carswell
and thus violated Carswell’s Fourth
Amendment rights is not enough, standing
alone, to deprive him of qualified
immunity. It is, however, enough to
support a finding that the use of excessive
force resulted from the Borough’s policy
denied sub nomine Borough of Roselle v.
Brown, 501 U.S. 1218 (1991) (finding it
“illogical and contrary to the interests of
judicial economy” that this court could not
directly hold that “a constitutional right
allegedly violated could not have been
clearly established because it has not been
recognized”). Further, I share the majority’s
skepticism regarding the admissibility of Dr.
McCauley’s expert testimony. See Maj. Op.
at 15-16; see also Peterson v. City of
Plymouth, 60 F.3d 469, 475 (8th Cir. 1995).
5 Because the claim against
Zuger in his official capacity is
tantamount to a claim against the
Borough because it employs him, see
Hafer v. Melo, 502 U.S. 21, 25 (1991),
we deal with both claims at once.
6 The officer was asked,
“What you clearly saw is they were empty,
the hands?” and he answered, “Yes.” App. at
1061a.

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14
and custom of providing police officers
only with guns, i.e. lethal weapons.7 The
jury could conclude from Snyder’s
testimony that, at the very moment he fired
the fatal shot, he believed that he was
using excessive deadly force where non-
lethal force would suffice. Indeed, if the
jury accepted his testimony as true, it
would have been hard to conclude
anything else. The jury could therefore
reason that the officer had to resort to
excessive force solely because the
Borough left him no alternative but to use
his gun in a situation where non-lethal
force could reasonably have been
employed to subdue Carswell.
A.
To establish a municipality’s
liability under § 1983, the plaintiff must
show that plaintiff’s constitutional rights
were violated by the municipality’s
deliberate indifference as reflected in its
policy or custom.8 See City of Canton v.
Harris, 489 U.S. 378, 385-88 (1989). A
municipality cannot, however, be held
liable for the alleged constitutional
deprivation unless “there is a direct causal
link between a municipal policy or custom
and the [] deprivation.” Id. at 385.9 My
colleagues believe that “the record here
fails to establish deliberate indifference or
causation” as a matter of law. Maj. Op. at
26. However, “whether or not a
defendant’s conduct amounts to deliberate
indifference has been described as a
7 The qualified immunity of
the police officers and the liability of the
Borough are two separate and distinct issues,
as the majority explains. See Maj. Op. at 25
(citing Kneipp v. Tedder, 95 F.3d 1199,
1213 (3d Cir. 1996) and Fagan v. City of
Vineland, 22 F.3d 1283, 1294 (3d Cir.
1994)).
8 “Policy is made when a
decision maker possessing final authority to
establish municipal policy with respect to
the action issues an official proclamation,
policy, or edict.” Kneipp, 95 F.3d at 1212
(internal quotation marks and citation
omitted). “Customs are practices of state
officials . . . so permanent and well settled as
to virtually constitute law.” Berg v. County
of Allegheny, 219 F.3d 261, 275 (3d Cir.
2001) (internal quotation marks and citation
omitted). “The policy or adopted custom
that subjects a municipality to § 1983
liability may relate to the training of police
officers. A municipality’s failure to train its
police officers can subject it to liability,
however, only where it reflects a deliberate
or conscious choice by the municipality – a
policy as defined in Supreme Court cases.”
Brown v. Muhlenberg Township, 269 F.3d
205, 215 (3d Cir. 2001) (internal quotation
marks, brackets and citation omitted).
9 A municipality like the
Borough “may . . . be sued directly if it is
alleged to have caused a constitutional tort
through a policy statement . . . officially
adopted and promulgated by that body’s
officers.” City of St. Louis v. Praprotnik,
485 U.S. 112, 121 (1988) (internal quotation
marks and citation omitted). Alternatively, a
plaintiff can establish a causal link between
the alleged constitutional violation and a
municipality’s custom or practice.
Muhlenberg Township, 269 F.3d at 214-15.

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15
classic issue for the fact finder and a
factual mainstay of actions under § 1983.”
A.M . v. Luzerne Cty. Juvenile Detention
Ctr., 372 F.3d 572, 588 (3d Cir. 2004)
(internal quotation marks, citation and
brackets omitted). Given the evidence
here, that should have been an issue for the
jury to decide and the Borough was
therefore not entitled to judgment as a
matter of law under Rule 50.
In Brown v. Muhlenberg Township,
269 F.3d 205, 215 (3d Cir. 2001), we
quoted City of Canton, noting:
It may seem contrary to
common sense to assert that
a municipality will actually
have a policy of not taking
reasonable steps to train its
employees. But it may
happen that in light of the
duties assigned to specific
officers or employees the
need for more or different
training is so obvious, and
the inadequacy so likely to
result in the violation of
constitutional rights, that the
policymakers of the city can
reasonably be said to have
been deliberately indifferent
to the need.
I believe that a jury could reasonably
conclude that this record establishes such
deliberate indifference because the
Borough’s training left Officer Snyder
with no reasonable alternative to the use of
deadly force. The Supreme Court
elaborated upon this in Board of County
Comm’rs of Bryan County v. Brown, 520
U.S. 397 (1997). It explained:
In leaving open in Canton
the poss ibility that a
plaintiff might succeed in
carrying a failure-to-train
claim without showing a
pattern of constitutional
violations, w e s im ply
hypothesized that, in a
n a r r o w r a n g e o f
circumstances, a violation of
federal rights may be a
h i g h l y p r e d i c t a b l e
consequence of a failure to
equip law enforcement
officers with specific tools
t o h a n d l e r e c u r r i n g
situations. The likelihood
that the situation will recur
and the predictability that an
officer lacking specific tools
to handle that situation will
violate citizens’ rights could
justify a finding that
policymakers’ decision not
to train the officer reflected
“deliberate indifference” to
the obvious consequence of
the policymakers’ choice –
namely, a violation of a
specific constitutional or
statutory right. The high
degree of predictability may
also support an inference of
c ausation – th at th e
municipality’s indifference
led directly to the very

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16
consequence that
was so predictable.
Id. at 409-10.
We applied this teaching in Berg v.
County of Allegheny, 219 F.3d 261 (3d
Cir. 2000). There, we reviewed the
District Court’s grant of summary
judgment in favor of the defendants in a
suit alleging a violation of civil rights as a
result of the plaintiff’s arrest on an
erroneous warrant. Plaintiff argued that
the defendant county maintained a “flawed
warrant creation practice and poor training
procedures.” Id. at 275 (internal quotation
marks omitted). Warrants were generated
“based on a single datum – the criminal
complaint number . . . [with] no other
information [and] no check . . . to guard
against the kind of mistake [that was]
made. Nor [were] there procedures that
would allow [an] officer . . . who suspects
an error to confirm that suspicion.” Id. We
concluded that the “failure to provide
protective measures and failsafes . . .
seems comparable to ‘a failure to equip
law enforcement officers with specific
tools to handle recurring situations’” and
reversed the grant of summary judgment
for the municipality. Id. at 277.
B.
An even more compelling prima
facie case of municipal liability under §
1983 was established here than in Berg.
Police Chief Zuger compiled the policy
manual for the Borough’s po lice
department pursuant to his authority as
police chief. App. at 984a. The manual
contains the Borough’s official policy for
the police department, and all police
officers in the Borough were required to
familiarize themselves with it and attest to
having read it. It prescribes an official
policy of “progressive force” for the
Borough’s police, stating that “[t]he use of
force will be progressive in nature, and
may include verbal, physical force, the use
of non-lethal weapons or any other means
at the officer’s disposal, provided they are
reasonable under the circumstances.” App.
at 998a. Chief Zuger testified further that
“[t]he policy of the Homestead Police
Department is to use only the amount of
force which is necessary in making an
arrest or subduing an attacker. In all
cases, this will be the minimum amount of
force that is necessary.” App. at 1001a
(emphasis added).10
However, as the majority notes, the
Borough provided only guns to its officers.
It did not equip them with any non-lethal
weapons. Rather, an officer had to request
any non-lethal weapon he/she might wish
to carry and the request had to be approved
by Zuger. If the request was approved, the
officer then had to undergo additional
training with the new weapon and become
certified to use it. App. at 986a-87a.
Although Chief Zuger was not asked about
training in lethal force, the fact that
10 Indeed, a municipal
policy that authorized and condoned the
use of deadly force when an officer
reasonably believed non-lethal force to
be sufficient would certainly run afoul of
the Constitution. Cf. Canton, 489 U.S. at
390 n.10.

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17
officers were equipped with a gun and had
to be trained in any approved non-lethal
weapon they may have carried certainly
supports the inference that the Borough
only trained officers in the use of lethal
force unless the Borough approved an
individual request for a non-lethal weapon.
It is obviously foreseeable that an
officer who is equipped only with a lethal
weapon, and trained only in the use of
lethal force, will sooner or later have to
resort to lethal force in situations that
officer believes could be safely handled
using only non-lethal force under the
Borough’s own “progressive force” policy.
This record therefore presents that “narrow
range of circumstances, [where] the
violation of federal rights [is] a highly
predictable consequence of a failure to
equip law enforcement officers with
specific tools to handle recurring
situations.” Brown, 520 U.S. at 409.
My colleagues state that “we have
never recognized municipal liability for a
constitutional violation because of failure
to equip police officers with non-lethal
weapons.” Maj. Op. at 27. I agree.
However, we have never before addressed
that precise issue. Accordingly, our failure
reject that theory of recovery is neither
relevant nor precedential. I am also far
less impressed with the analysis of the
Court of Appeals for the Seventh Circuit
in Plakas v. Drinski, 19 F.3d 1143 (7th
Cir. 1994) than my colleagues. As the
majority notes, the court there stated:
We do not think it is wise
policy to permit every jury
in these cases to hear expert
testimony that an arrestee
would have been uninjured
if only the police had been
able to use disabling gas or
a capture net or a taser (or
even a larger number of
police officers) and then
decide that a municipality is
liable because it failed to
buy this equipment (or
increase its police force).
There can be reasonable
debates about whether the
Constitution also enacts a
code of criminal procedure,
but we think it is clear that
the Constitution does not
e n a c t a p o l i c e
administrator’s equipment
list.
Id. at 1150-51 (footnote omitted) (quoted
in Maj. Op. at 27-28). However, defining
our inquiry in terms of whether the
Co nstitution creates an approved
“equipment list” for police is both
misleading and counterproductive. That is
simply not the issue, and that formulation
of the issue obfuscates our inquiry rather
than advancing it. Given the duties of a
police officer, it was certainly foreseeable
that the Borough’s policy of equipping
officers only with guns and training them
only in the use of deadly force would
sooner or later result in the use of
unjustifiable deadly force.
Moreover, Chief Zuger’s testimony

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18
dispels the fanciful notion that a finding of
liability here would potentially result in a
constitutionally mandated “equipment
list.” He testified that an officer could
seek approval for “any” non-lethal
weapon, including mace, pepper spray, a
baton, etc. 1020a (emphasis added). The
result is, therefore, not a mandated
equipment list, but a mandated alternative
to using deadly force in those situations
where an officer does not believe it is
necessary to use deadly force. We must
not forget that “[o]ne of the main
purposes of nonlethal, temporarily
incapacitating devices such as pepper
spray is to give police effective options
short of lethal force that can be used to
take custody of an armed suspect who
refuses to be lawfully arrested or
detained.” Gaddis v. Redford Township,
364 F.3d 763, 774 (6th Cir. 2004).
M oreover, interpreting the Fourth
Amendment as requiring municipalities to
provide reasonable alternatives to the use
of deadly force imposes no undue burden.
In fact, here, it would do nothing more
than effectuate the Borough’s own
announced policy of “progressive force.”
My colleagues imply that the
Borough can not be liable under a failure
to train theory because its police officers
were properly trained in the use of deadly
force. The majority states: “This evidence
did not establish a lack of training on the
use of deadly force that amounted to a
deliberate indifference, nor does it
demonstrate a pattern of underlying
constitutional violations that should have
alerted [the Borough] to an inadequate
training program.” Maj. Op. at 26-27.
However, plaintiff never argued that
liability should be imposed on the basis of
a failure to train in the use of deadly force.
Rather, plaintiff argues that the Borough
should be liable because its policy of
requiring training only in using deadly
force and equipping officers only with a
lethal weapon, caused Officer Snyder to
use lethal force even though he did not
think it reasonable or necessary to do so.
Moreover, as I have already noted,
given the duties of a police officer, it does
not require a “pattern of underlying
constitutional violations” to alert the
Borough to the fact that its policies would
cause police to unnecessarily use deadly
force. Rather, as I have argued above, this
record satisfies the teachings of Brown
because plaintiffs have established that
“narrow range of circumstances, [where] a
violation of federal rights may be a highly
predictable consequence of a failure to
equip law enforcement officers with
specific tools to handle recurring
situations.” Brown, 520 U.S. at 409.
Thus, even without a pattern of abuse,
“t]he likelihood that the situation will
recur and the predictability that an officer
lacking specific tools to handle that
situation will violate citizens’ rights could
justify a finding that policymakers’
decision . . . reflected ‘deliberate
indifference’ to the obvious consequence
of the policymakers’ choice.” Id.
In Berg, we allowed municipal
liability under § 1983 because procedures
were inadequate to guard against someone
being arrested as the result of an

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erroneously issued warrant and municipal
defendants “employed a design where the
slip of a finger could result in wrongful
arrest and imprisonment[.]” 219 F.3d at
277. Reckless indifference that causes the
fatal use of excessive force must surely be
as actionable as reckless indifference
resulting in “the slip of a finger” that
merely causes an arrest.11
II.
Thus, for the reasons I have set
forth above, I must respectfully dissent
from the majority opinion insofar as it
affirms the District Court’s grant of
judgment as a matter of law under Fed. R.
Civ. P. 50 for the Borough. I believe
plaintiff is entitled to a new trial solely
against the Borough, and I would remand
to the District Court for that purpose.
11 I also note that in Berg, we
did not express a concern that holding
municipalities liable for arrests that resulted
from nothing more than “the slip of a finger”
would result in a constitutionally mandated
set of procedures that municipalities would
have to follow when obtaining arrest
warrants.

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