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.
At a stated term of the United States Court of Appeals for the Second Circuit, held 1 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 2 York, on the 1 st day of February , two thousand twenty

- two. 3 4 PRESENT: PIERRE N. LEVAL, 5 RAYMOND J. LOHIER, JR., 6 MYRNA PÉREZ, 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 CHRYSTAL SCISM, INDIVIDUALLY AND AS 10 ADMINISTRATRIX OF THE ESTATE OF JOSHUA 11 SCISM, 12 13 Plaintiff

- Appellee , 14 15

v. No. 21

- 2622

- cv 16 17 DETECTIVE BRETT FERRIS , 18 19 Defendant

- Appel lant

. ∗ 20

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

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

- APPELLEE : M ARIE M. D U S AULT , Finkelstein & 1 Partners LLP, Newburgh , NY 2 3 FOR DEFENDANT

- APPELLANT: G REGG T YLER J OHNSON , Johnson 4 & Laws, LLC, Clifton Park , NY 5 

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



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


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



### AND DECREED that the order of the District Court is AFFIRMED

. 9



### Detective Brett Ferris appeal s from a September 29, 2021 order of the 10



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


### denying hi s motion for summary judgment on the ground that he was entitled to 12


### qualified immunity

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


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


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

. J oshua 15



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


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


### Schenectady (together, “Defendants”) under 42 U.S.C. § 1983. 1 

### In October 2020 , 18

1 Plaintiff also initially brought claims against the “Schenectady Police Department,” see App’x 488, but the parties subsequently stipulated that all claims against the3 

### Defendants moved for summary judgment . The District Court granted 1


### Defendants’ motion with respect to Plaintiff’s Monell

- based claim against the 2


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



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


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


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


### only as necessary to explain our decision to a ffirm. 7


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


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


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



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


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


### within the meaning of 28 U.S.C. § 1291 notwithsta nding the absence of a final 13


### judgment

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

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 

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


### immunity defense on stipulated facts, facts accepted for purpose s of the appeal, 2


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


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



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


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


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


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



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



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


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



### novo

. See Jones v. Parmley , 465 F.3d 46, 55 (2d Cir. 2006)

. To determine whether 12


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


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



### clear to a reasonable officer that his conduct was unlawful i n the situation he 15



### confronted.’” Vasquez v. Maloney , 990 F.3d 232, 237

– 38 (2d Cir. 2021) (quoting 16



### Hernandez v. Mesa , 137 S. Ct. 2003, 2007 (2017)). “Defendants moving for 175 

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



### demonstratin g that no rational jury could conclude (1) that the official violated a 2


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


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


### omitted) ; see also id. ( e xplaining when a right is clearly established). 5


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


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



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



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



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


### undisputed,” Lennox , 968 F.3d at 154 n.2

— such as when he asserts that Scism 11


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



### 29, 41, facts that Plaintiff’s evidence disputes

. Given these factual disputes, we 13


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


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


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


### omitted) , w hether “it would be clear to a reasonable officer [in Ferris’s shoes] 176 

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



### at 238 (quotation marks omitted)

. W e conclude that, given the version of the full 2


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


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


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


### marks omitted)

. 6



### W e therefore agree with the District Court that summary judgment must 7



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


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


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


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


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



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


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


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


### factual disputes to the jury. Id. 167 

### We have considered Ferris’s rem aining arguments and conclude that they 1


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



### AFFIRMED. 3



### FOR THE COURT: 4 

### Catherine O’Hagan Wolfe, Clerk of Court 5 6