NOT PRECEDENTIAL UNITED STATES COURT OF APPE ALS FOR THE THIRD CIRCUIT

________ No. 08-2168

_________
PAMELA A. COUDEN; TI FFANY A. COUDEN; ADAM R. COUDEN, a minor, by his next friend Pamela A. Couden; NICHOLAS M. COUDEN, a minor, by his next friend, Pamela A. Couden;

JORDAN T. COUDEN, a minor, by his ne xt friend, Pamela A. Couden;

LUKE J. COUDEN, a minor by his ne xt friend, Pamela A. Couden; MICAH J. COUDEN, a minor by his ne xt friend, Pamela A. Couden, Appellants

v. SCOTT DUFFEY; JAMES C. ARMSTRONG; JAY FREEBERY; LIAM SULLIVAN; TWO UNKNOWN NAMED AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION; NEW CASTLE COUNTY; NEW CASTLE POLICE DEPARTME NT; CITY OF WILMINGTON; CITY OF WILMINGTON DE PARTMENT OF POLICE; UNITED STATES OF AMERICA

________ On Appeal from the United States District Court for the District of Delaware

(D.C. No. 1-03-cv-00369) Magistrate Judge: Ho norable Mary Pat Thynge

_______ Argued December 13, 2010 Before: SLOVITER, GREENAWAY, JR ., and STAPLETON, Circuit Judges

. (Filed: January 7, 2011)

______ William D. Fletcher, Jr. Noel E. Primos (Argued) Schmittinger & Rodriguez 1Dover, DE 19903 Attorneys for Appellants Michele D. Allen (Argued) Richard R. Wier, Jr. Wilmington, DE 19806 Judith A. Hildick New Castle County Law Department New Castle, DE 19720 Seth M. Beausang David C. Weiss Office of United States Attorney Wilmington, DE 19899 Rosamaria Tassone-DiNardo City of Wilmington Attorneys for Appellees

_______ OPINION

______ SLOVITER, Circuit Judge

. This is the second time this case has b een before this court. The action was brought by Pamela Couden and her six children pursuant to 42 U.S.C. § 1983, against New Castle County police officers Jay Fr eebery and James Armstrong and others alleging defendants violated th eir Fourth Amendment rights. The District Court Judge granted summary judgment in favor of all defendants. Couden v. Duffey , 305 F. Supp. 2d 379 (D. Del. 2004). On the first appeal, we reversed the entry of summary judgment in favor of Freebery and Armstrong, holding that the District Cour t did not view the facts in

2the light most favorable to the plaintiffs as required. Couden v. Duffey , 446 F.3d 483 (3d Cir. 2006). After further discovery, Freebery and Armstrong again moved for summary judgment. The matter came before a Magistra te Judge who denied summary judgment as to the claim that Armstrong unconstitutionally seized Pamela and her four youngest children while in their vehicle and Adam Couden’s claim that Ar mstrong and two other officers used excessive force to arrest him. Couden v. Duffey , 533 F. Supp. 2d 490 (D. Del. 2008). However, the District Court gran ted summary judgment as to the claim that Freebery used excessive force when he threw his flashlight through the front passenger side-door window of th e Coudens’ car and Adam’s claim that Freebery facilitated the use of excessive force against Adam by “restr ain[ing]” Tiffany Couden (who was in the house) while other officers arrested Adam. 1 The Coudens appeal.
I. Viewed in the light most favorable to th e plaintiff-appellants, the record supports the following facts. At around 8:00 in the ev ening on April 12, 2001, Officers Armstrong and Freebery were parked in an unmarked vehicle on the corner of Sanford Drive and Argyle Drive, Newark, Delaware, staking out the home located at 7 Sanford, three houses down from the corner. While pa rked, they observed a car pull up to th e sideyard of the corner home, 3 Sanford. A male wearing an orange sweatshirt exited the car and walked

1 The District Court had jurisdiction purs uant to 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. The Magistrate Judge ce rtified the case pursuant to Fed. R. Civ. P. 54(b), and stayed the clai ms against defendants other than Freebery pending this appeal. 3across the sideyard to the back yard where he entered the garage of 3 Sanford. After a few minutes, the car pulled into the driveway with its light s on and sounded its horn. Armstrong and Freebery, dressed in street clothes, then exited their vehicle. Freebery went to the backyard. Armstrong approached the car with his gun drawn as it sat running in the driveway. The car was being driven by Pamela Couden and the backseat was occupied by her four youngest children, Nicholas, 11, Jordan, 9, Luke, 7, and Micah, 4. The person who had exited the car to enter the garage was Adam Couden, Pamela’s 14 year old son. The Coudens were the residents of 3 Sanford. Once Pamela noticed the man approaching her car through her yard, she asked her children if they recognized hi m. They did not. She then noticed that he had a gun and stated as much, causing her children to scream in alarm. Officer Armstrong never showed his badge and once he reached the car attempted to open the locked front driver side door. Frightened, Pamela first put her car in neutral before successfully putting it into drive. She then steered to the left to avoid going straight into the garage and drove into the sideyard. She then veered to the right in order to avoid a tree and exited, unobstructed, onto Ar gyle Drive. While Pamela wa s driving through the sideyard, Freebery ran from the backyard towards th e car with his gun drawn and threw his flashlight through the front passenger side-d oor window, shattering the glass and causing minor injuries to some of the occupants. The precise location and trajectory of both Freebery and the car are disputed and serve as the focal point of the current a ppeal as these facts will determine whether 4Freebery was in any immediate danger and acco rdingly whether his decision to throw the flashlight was an objectively reasonable one. At his deposition, Freebery de scribed the vehicle as traveling at a “high rate of speed” and claimed that he threw the flashlight “in an attempt to stop [the car] and in an attempt to get the hell out of the way.” Ap p. at 183-84. Armstrong described the vehicle as driving “erratically,” but testified that at no point did he see Freebery in front of the vehicle. App. at 218. Instead, he stated that he saw Freebery to the side of the vehicle. Micah, the youngest of Couden’s children, described the car as swerving to avoid a tree, but specifically denied that Freebery was in front of the car, instead testifying that Freebery was to the right of the car. Jordan similarly testified that Freebery “was off towards the right.” App. at 285. Nicholas testified that Freebery was running at the car from the backyard, that Pamela was not driving in Freebery’s direction, and that he saw Freebery on the right out of the front passenger window about 10 or 15 feet away from the car. Pamela testified that once sh e got the car in drive her “f oot was all the way to the floor.” App. at 357. She also testified that she swerved left to avoid the garage, and then swerved again (presumably to the right) to a void the tree that sat in the front of the sideyard. She testified that after she swerve d to avoid the tree, she could see Freebery “charging” toward the vehicle fro m the side, “[b]ut he didn’t get close,” and was “several feet away” as she went past him just befo re the glass shattered. App. at 357. Freebery’s supervisor, Lt. Quinton Watson, disciplined Freebery for throwing the flashlight. The written “record of discipline” describes Freebery moving out of the way 5of the vehicle and then throwing his flashlight “as [the car] passed him in an attempt to ‘stop’ the fleeing vehicle.” App. at 107. Th e report concludes that “[t]his type of force was deemed unreasonable and the use of Freebery’s flashlight in this situation unjustifiable.” Id. When asked why he deemed the us e of the flashlight unreasonable, Watson testified that the flash light could injure the occupants, distract the driver, and cause the vehicle to careen “out of control.” App. at 409.
II. We exercise plenary review over a district court’s order granting summary judgment, applying the same test as the distri ct court to determine if there are any issues of material fact. See Fed. R. Civ. P. 56; Kach v. Hose , 589 F.3d 626, 633-34 (3d Cir. 2009). The appellants, as the non-moving parties on summary judgment, are entitled to every favorable inference that can be drawn fro m the record. Kach , 589 F.3d at 633-34.
III. Freebery claims that his decision to thro w the flashlight, undisputedly a use of force and a seizure under the Fourth Amendment, is protect ed by qualified immunity. The Fourth Amendment provides th at “[t]he right of people to be secure in their persons . . . against unreasonable searches and seizures, shall not be viol ated.” We have explained that qualified immunity involves two questions. First, as rele vant here, whether the facts, viewed in the light most favorab le to the Coudens, show that Freebery’s conduct violated a constitutional right, or, as we previously rephrased the inquiry: whether Freebery’s “actions [and beliefs were] objec tively reasonable in light of the facts and circumstances confronting him.” Curley v. Klem , 298 F.3d 271, 279 (3d Cir. 2002) (quotations 6omitted). In evaluating whether Freebery’s use of force was proportional in light of the totality of the circumstances, the issue raised here is wh ether the Coudens posed an immediate threat to the safety of the officer or others. See Abraham v. Raso , 183 F.3d 279, 289-92 (3d Cir. 1999). As the District C ourt suggested, the most salient “factor [in this case] is whether the [aut omobile driven by Pamela] pose[ d] an immediate threat to the safety of Freebery or others.” Couden , 533 F. Supp. 2d at 501. In attempting to view the facts in the light most favor able to the appellants, the District Court stated that it would “assume that the car was not coming directly at Freebery; rather, that Freebery was to the side of the vehicle.” Id. But when it applied the facts, the District Court emphasized that the car was traveling erratically and “coming in [Freebery’s] general direction.” Id. at 502. In its oral ruling denying appellants’ motion for reargument, the District Court, cutti ng a very fine line, insisted that it assumed Freebery was not directly in front of the vehi cle, but nevertheless concluded that he was “within a zone of danger.” App. at 48. Th e District Court also characterized Freebery’s movement toward the vehicle as being part of his investigative duties. Consequently, the District Court reasoned, “Fr eeberry threw his flashlight at the vehicle – a reflexive reaction – to prevent th e car from hitting him.” Couden , 533 F. Supp. 2d at 502. Pamela’s own testimony supports a conclu sion that she was driving quickly and swerved twice. But by extrapolating from her testimony that her entire path was erratic and that Freebery was in the “zone of danger,” the District Court made inferences against the plaintiff-appellants, rather than in thei r favor. Pamela’s testimony, if credited, establishes that when she fini shed swerving to avoid the tree, Freebery was still at her 7right, and therefore arguably out of danger. I ndeed, although a crystal clear picture of what occurred is difficult to ascertain, the ge stalt of the Coudens’ testimony is consistent and relatively plain: Freebery was some distan ce to the side of the car, ran toward it, and then threw his flashlight. A jury would be entitled to credit this testimony which is supported by the undisputed fact that the fl ashlight went through the front passenger side-door window, not the windshield. The District Court also failed to properl y consider the disciplinary report of Lt. Watson because it deemed that the report and Watson’s subseq uent testimony were irrelevant “legal conclusions.” App. at 49. 2 However, Watson’s wr itten description of the events, which was signed by Freebery, cont ains relevant factual evidence apart from any of Watson’s conclusions. Most notably, Watson’s report states that Freebery threw the flashlight in an effort to stop the fl eeing vehicle after he wa s already out of the vehicle’s way, indicating that Freebery did not throw the flashlight for his own defense. When properly viewed in the light most favorable to the plaintiff-appellants, the facts would permit a jury to conclude that Fr eebery was not in imminent danger and that his decision to throw the flashlight, an undi sputedly highly dangerou s activity that could have wreaked significant, lethal damage, wa s unreasonable, violating the Coudens’ rights

2 The Supreme Court has held that local police enforcement practices and regulations may not be relie d on as evidence of whether a seizure was objectively reasonable under the Fourth Amendment. Whren v. United States , 517 U.S. 806, 815-16 (1996). Accordingly, to the extent that Watson’s report deems Freebery’s actions as unreasonable based on violation of local pr ocedures, it has no bearing on reasonableness under the Fourth Amendment.

8under the Fourth Amendment. 3 The Supreme Court has held that absent an immediate threat to an officer or others, such a use of deadly force agains t a fleeing suspect is objectively unreasonable. Tennessee v. Garner , 471 U.S. 1, 11 (1985). Although the reasonableness of force is a factually intensive inquiry, our conclusion that there are disputed issues of material fact is supported by our decision in Abraham v. Raso , 183 F.3d 279 (3d Cir. 1999). Abraham addressed whether an officer used excessive force when she shot a bullet through the side window of a moving car that was headed in the officer’s general direction in a parking lot. “[T]he undisputed facts [were that Abraham] had stolen some clothing, resisted arrest, hit or bumped into a car [while backing his car out of the parkin g lot], and was reasona bly believed to be intoxicated.” Id. at 293. Once he had successfully pulled his car out of the parking spot, Abraham started heading in the general directi on of the police officer, Raso. The parties, as in this case, disputed whether the officer wa s directly in front of the car or to the side of the car. Largely because the bullet came through the side window, we held that a

3 The District Court, noting that we have not specifically rule d on whether expert opinion can be used to demonstrate a po lice officer’s reasonableness under qualified immunity, also refused to consider the re port of plaintiffs’ e xpert, Prof. McCauley, because it essentially offered his legal c onclusion that Freebery’s actions were objectively unreasonable. Because the remain ing admissible evidence is sufficient to survive summary judgment, we need not re ach the issue of the admissibility of the expert’s report. However, we note our conf licting approaches to such evidence in the past. On occasion, we have relied on experts’ conclusions , including Prof. McCauley’s, as relevant evidence regarding whether po lice conduct was reasonable under the Fourth Amendment. Compare Estate of Smith v. Marasco , 430 F.3d 140, 15 1 (3d Cir. 2005) (relying on expert’s conclusion s as relevant evidence regarding the reasonableness of police conduct), with Carswell v. Borough of Homestead , 381 F.3d 235, 243-44 (3d Cir. 2004) (discounting such expert testimony). 9reasonable jury could conclude that the officer was on the side of the car and was not in imminent danger and, therefore, that her use of force was unreasonable. Id. A jury in this case could make the same finding, particularly because several circumstances indicating that Abraham posed a risk are not present here. Abraham had already hit one car and was reasonably pres umed to be intoxicated, strengthening the reasonableness of any officer’s belief that while behind the wheel Abraham was a danger to the police officer, or others. We conclude that the facts in th is case, viewed most favorably to the appellants, would permit a ju ry to find Freebery vi olated the Coudens’ constitutional right. We thus turn to the second qualified i mmunity question: whether the right in question was clearly established or, put differently, “whether it would be clear to a reasonable officer that his conduct was unlaw ful in the situation he confronted.” Saucier v. Katz , 533 U.S. 194, 202 (2001). “Because th e focus is on whether the officer had fair notice that her conduct was unlawful, reasonabl eness [in this context] is judged against the backdrop of the law at the time of the conduct.” Brosseau v. Haugen , 543 U.S. 194, 198 (2004). “[T]here does not have to be precise factual correspondence between the case at issue and a previous case in order for a right to be clearly established . . . .” Kopec v. Tate , 361 F.3d 772, 77 8 (3d Cir. 2004) (quotations omitted). However, in a close case, “a broad general prop osition” of the law will not serve to clearly establish to a reasonable officer that his conduct was unlawful. Brosseau, 543 U.S. at 198 (quotations omitted).

10Our decision in Abraham , which was issued prior to the conduct in question, is sufficiently similar to the facts of this case so as to make it clear to a reasonable officer that his conduct, as described by the plain tiff-appellants, was unlawful. As discussed, Abraham held that it was unreasonable for an office r to fire a bullet into the side of the car even when the car had al ready hit another car and the driver was reasonably believed to be intoxicated. Accordingly, a reasonabl e officer would have known that throwing a flashlight into a moving car, which was not headed directly towa rds the officer, was equally if not more unreasonable under the law. 4 With regard to Adam C ouden’s claim that Freebery used excessive force by restraining Tiffany while other officers arrest ed Adam, we affirm for substantially the reasons stated in the District Court’s opi nion—the facts, even when viewed most favorably to Adam, si mply do not support the claim. Tiffany testified that Freebery initially restrained her for he r “protection.” App. at 326 . Although upon seeing Adam she told the officers that he was her brother and to stop arresting him, she never testified that she tried to “assist[] Adam while the ot her Defendants assaulted Adam.” Appellants’

4 It is important to note that our deci sion denying qualified i mmunity is a limited one: qualified immunity is not warranted at th e summary judgment stag e in this case as to the flashlight claim. Because qualified immu nity hinges, in large part, on a determination of the facts, it “remains a viable defens e, though its applicability cannot be finally determined until after the facts have been [established] at trial.” Reedy v. Evanson , 615 F.3d 197, 224 n.38 (3d Cir. 2010). To that end, we note that when a case involves several interrelated claims, some of which the distri ct court believes should proceed to trial, judicial economy and the parties’ interest in final resolution may suggest that the district court reserve judgment on the issue of qualif ied immunity, notwithsta nding that it is an immunity from suit, in order to more fully develop the facts and avoid the multiple rounds of briefing and appeals that have taken this case nearly ten years to resolve.

1112 Br. at 30. Even assuming Tiffany was tryi ng to free her brother, it would have been objectively reasonable for Freeb ery to prevent her from inte rfering while other officers made an arrest. 5
IV. For the foregoing reasons, we will reverse the grant of summary judgment in favor of Freebery as to the excessive force claim re lated to the flashlight incident and remand for resolution by the jury of the disputed issues of materi al fact. We affirm the grant of summary judgment in favor of Freebery as to Adam Couden’s claim that Freebery used excessive force by restraining Tiffany Couden and in allegedly slamming the garage door into Adam.

5 Baker v. Monroe Twp. , 50 F.3d 1186 (3d Cir. 1995), is not to the contrary. In that case, we held that the defendant could be held personally liable for other officers’ excessive force because the de fendant both knew of the excessive treatment and was the supervisor. Culpability was ba sed on supervisory liability. Id. at 1193-94. Nowhere is it alleged that Freebery was in a supervisory pos ition. Appellants point to no case law that would clearly establish to a reasonable officer that his actions in re straining Tiffany were unlawful. We also affirm the dismissal of Adam’s claim that Free bery used excessive force in slamming the garage door into Adam while trying to open it. Adam cites to nothing in the record indicating that Freebery was the officer who slammed the door into him. Adam merely states that “this unknown officer co uld have been Freebery.” Appellants’ Reply Br. at 7. Absent eviden ce indicating that it was Freebery, no jury could grant a verdict in Adam’s favor. Accord ingly, the District Court properly granted summary judgment on this claim.