21-2622-cv

Scism v. Ferris

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A 

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE 

(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A 

SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT 

REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, held 

2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 1 3 st day of February, two thousand twenty-two.

4

5 PRESENT: PIERRE N. LEVAL,

6 RAYMOND J. LOHIER, JR.,

7 MYRNA PÉREZ,

8 Circuit Judges.

9 ------------------------------------------------------------------

10 CHRYSTAL SCISM, INDIVIDUALLY AND AS

11 ADMINISTRATRIX OF THE ESTATE OF JOSHUA

12 SCISM,

13

14 Plaintiff-Appellee, 

15 

16 v. No. 21-2622-cv

17

18 DETECTIVE BRETT FERRIS,

19

Defendant-Appellant.

∗ 20

21 ------------------------------------------------------------------

∗ The Clerk of Court is respectfully directed to amend the caption as set forth above.
2

1 FOR PLAINTIFF-APPELLEE: MARIE M. DUSAULT, Finkelstein & 

2 Partners LLP, Newburgh, NY

3

4 FOR DEFENDANT-APPELLANT: GREGG TYLER JOHNSON, Johnson 

5 & Laws, LLC, Clifton Park, NY

6 Appeal from an order of the United States District Court for the Northern

7 District of New York (Thérèse Wiley Dancks, Magistrate Judge).

8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

9 AND DECREED that the order of the District Court is AFFIRMED. 

10 Detective Brett Ferris appeals from a September 29, 2021 order of the 

11 United States District Court for the Northern District of New York (Dancks, M.J.) 

12 denying his motion for summary judgment on the ground that he was entitled to 

13 qualified immunity. On June 13, 2016, Ferris, a member of the Schenectady 

14 Police Department who was preparing for an undercover drug buy, shot and 

15 killed Joshua Scism, a local resident who was not involved in the buy. Joshua 

16 Scism’s wife, Chrystal Scism (“Plaintiff”), brought suit against Ferris, his 

17 colleague Detective Ryan Kent (who was present at the shooting), and the City of 

Schenectady (together, “Defendants”) under 42 U.S.C. § 1983. 1 18 In October 2020,

1 Plaintiff also initially brought claims against the “Schenectady Police Department,” see

App’x 488, but the parties subsequently stipulated that all claims against the 
3

1 Defendants moved for summary judgment. The District Court granted 

2 Defendants’ motion with respect to Plaintiff’s Monell-based claim against the 

3 City of Schenectady, as well as the claim against Kent, whom the court found 

4 was entitled to qualified immunity, but it denied the motion with respect to 

5 Plaintiff’s excessive force claim against Ferris. We assume the parties’ familiarity 

6 with the underlying facts and the record of prior proceedings, to which we refer 

7 only as necessary to explain our decision to affirm.

8 Plaintiff argues that we lack jurisdiction to hear this appeal because 

9 Ferris’s “brief on appeal is replete with his own versions of the events and his 

10 interpretations of the evidence.” Pl.’s Br. at 4 (quotation marks omitted). We 

11 have held that “[a] district court’s denial of a claim of qualified immunity, to the 

12 extent that it turns on an issue of law, is deemed an appealable ‘final decision’ 

13 within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final 

14 judgment.” Lynch v. Ackley, 811 F.3d 569, 576 (2d Cir. 2016) (quoting Mitchell v. 

department would be discontinued, as it was “not a legal entity distinct from the City of 

Schenectady,” see D. Ct. Dkt. No. 41. In addition, the complaint initially included 

various state law claims, but these were also later dismissed pursuant to a stipulation 

by the parties, see D. Ct. Dkt. No. 19.
4

1 Forsyth, 472 U.S. 511, 530 (1985)). “[A]s long as the defendant can support an 

2 immunity defense on stipulated facts, facts accepted for purposes of the appeal, 

3 or the plaintiff’s version of the facts that the district judge deemed available for 

4 jury resolution, an interlocutory appeal is available to assert that an immunity 

5 defense is established as a matter of law.” Id. (quotation marks omitted). We 

6 thus have jurisdiction over the appeal so long as we base our analysis not on any 

7 disputed facts that may appear in Ferris’s brief “but on an independent review of 

8 the record, including the district court’s explanation of facts in dispute.” Lennox 

9 v. Miller, 968 F.3d 150, 154 n.2 (2d Cir. 2020).

10 We therefore turn to the District Court’s denial of Ferris’s summary 

11 judgment motion based on a defense of qualified immunity, which we review de

12 novo. See Jones v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006). To determine whether 

13 a public official is entitled to qualified immunity, which shields federal and state 

14 officials from money damages, “[t]he dispositive inquiry ‘is whether it would be 

15 clear to a reasonable officer that his conduct was unlawful in the situation he 

16 confronted.’” Vasquez v. Maloney, 990 F.3d 232, 237–38 (2d Cir. 2021) (quoting 

17 Hernandez v. Mesa, 137 S. Ct. 2003, 2007 (2017)). “Defendants moving for 
5

1 summary judgment on the basis of qualified immunity bear the burden of 

2 demonstrating that no rational jury could conclude (1) that the official violated a 

3 statutory or constitutional right, and (2) that the right was clearly established at 

4 the time of the challenged conduct.” Vasquez, 990 F.3d at 238 (quotation marks 

5 omitted); see also id. (explaining when a right is clearly established). 

6 Ferris argues that the undisputed facts make clear that he reasonably 

7 believed that his life was in danger when he shot Scism and that his actions were 

8 therefore objectively reasonable. See Cowan ex rel. Est. of Cooper v. Breen, 352 

9 F.3d at 756, 762 (2d Cir. 2003). The record, however, is filled with disputes as to 

10 material facts. And Ferris’s brief does at times “treat[] disputed facts . . . as 

11 undisputed,” Lennox, 968 F.3d at 154 n.2 — such as when he asserts that Scism

12 “brandished a loaded handgun” and “ignored police commands,” Def.’s Br. at 

13 29, 41, facts that Plaintiff’s evidence disputes. Given these factual disputes, we 

14 are unable to reach a conclusion based on “stipulated facts, facts accepted for 

15 purposes of the appeal, or the plaintiff’s version of the facts that the district judge 

16 deemed available for jury resolution,” Lynch, 811 F.3d at 576 (quotation marks 

17 omitted), whether “it would be clear to a reasonable officer [in Ferris’s shoes] 
6

1 that his conduct was unlawful in the situation he confronted,” Vasquez, 990 F.3d 

2 at 238 (quotation marks omitted). We conclude that, given the version of the full 

3 encounter advanced by Plaintiff’s witnesses, Ferris cannot at this stage meet “the 

4 burden of showing that [his decision to use lethal force] was objectively 

5 reasonable in light of the law existing at that time.” Id. at 238 n.5 (quotation 

6 marks omitted).

7 We therefore agree with the District Court that summary judgment must 

8 be denied. Although the question of qualified immunity cannot be resolved at 

9 this stage, Ferris will have the opportunity to pursue this argument as the case 

10 proceeds to trial. We note that although the jury must resolve the factual 

11 disputes concerning both excessive force and qualified immunity, “the qualified 

12 immunity issue is a question of law better left for the court to decide.” Cowan, 

13 352 F.3d at 764 (quotation marks omitted). If the jury finds that Ferris used 

14 excessive force against Scism, “the court should then decide whether [Ferris] is 

15 entitled to qualified immunity,” aided by interrogatories that present the key 

16 factual disputes to the jury. Id. 
7

1 We have considered Ferris’s remaining arguments and conclude that they 

2 are without merit. For the foregoing reasons, the order of the District Court is 

3 AFFIRMED. 

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk of Court 

6