2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-27-2013

Dustin Patrick v. Michael Moorman

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-2128

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Recommended Citation

"Dustin Patrick v. Michael Moorman" (2013). 2013 Decisions. Paper 328.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-2128

____________

DUSTIN ALPHANSO PATRICK,

Appellant

v. 

DEPUTY SHERIFF MICHAEL MOORMAN

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civ. Action No. 11-cv-01908)

District Judge: Honorable Stewart Dalzell

______________

Argued May 21, 2013

______________

Before: RENDELL, GREENAWAY, JR., and GARTH, Circuit Judges.

(Opinion Filed: August 27, 2013)

Stephen D. Brown, Esq.

Karen C. Daly, Esq.

Samuel D. Harrison [ARGUED]

Allison Rovner, Esq.

Dechert

2929 Arch Street

18th Floor, Cira Centre

Philadelphia, PA 19104

Counsel for Appellant
2

Andrew B. Adair, Esq. [ARGUED]

Deasey, Mahoney, Valentini & North

103 Chesley Drive

Suite 101

Media, PA 19063-0000

Sheryl L. Brown, Esq.

Siana, Bellwoar & McAndrew

941 Pottstown Pike

Suite 200

Chester Springs, PA 19425

Counsel for Appellee

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

After Appellant Dustin Patrick robbed a bank, Appellee Deputy Sheriff Michael 

Moorman (“Deputy Moorman”) apprehended him with his taser following a short foot 

chase. Suffering severe facial injuries and head trauma from the incident, Appellant filed 

a lawsuit against Deputy Moorman under 42 U.S.C. § 1983 for the use of excessive force 

in tasing him.

On May 26, 2012, the District Court granted summary judgment to Deputy

Moorman. After partially excluding the testimony of Patrick’s expert witness, the 

District Court found that Deputy Moorman’s use of the taser was not excessive and that, 

even if it had been excessive, Deputy Moorman would still be entitled to qualified 
3

immunity. For the following reasons, we will affirm.

I. BACKGROUND

Since we write primarily for the benefit of the parties, we recite only the essential 

facts.

Around 10 a.m. on May 8, 2009, Patrick walked into the Wyomissing, 

Pennsylvania branch of VIST Bank and handed the teller a note demanding money. 

Patrick had used crack immediately before robbing the bank and had used heroin every 

six hours, cocaine every thirty minutes, and methadone twenty-four hours preceding the 

robbery. After Patrick fled the scene, bank employees notified authorities that Patrick

had not displayed a weapon but had handed the teller a demand note. Between eighteen 

and thirty police officers responded to the call about Patrick’s flight.

Deputy Moorman was in his patrol car with his partner, Deputy Keith Neiswender, 

when they received the radio broadcast about the robbery. The radio operator identified 

Patrick as a white male with a gray sweatshirt and a large tattoo on his neck. In 

responding to the scene, the officers also heard over the radio that Patrick had been 

wandering through public areas and passed a group of students from Berks Technical 

Institute without incident.

After receiving a tip from a nurse near the bank, Deputy Moorman and Deputy 

Neiswender left their car to search the Berkshire Commons parking lot for Patrick. At 

about the same time, Officer Barry Moyer and an unnamed officer arrived at the same 
4

parking lot. When Deputy Moorman, Officer Moyer, and Deputy Neiswender split up, it 

was Deputy Moorman who encountered Patrick behind a dumpster in a parking lot. 

Deputy Moorman is five-foot-ten and 190 pounds, while Patrick is about six feet tall and 

230 pounds. That day, Deputy Moorman was armed with a firearm, a taser, a collapsible 

baton, and mace.

Patrick disputes some of the facts of the chase that then ensued, so the following 

facts reflect Patrick’s version of events insofar as it is supported by the record.1

As the chase began, Deputy Moorman was closest to Patrick, followed a few steps 

behind by Officer Moyer, and further behind by Officer Douglas Goeltz, another officer 

who came on the scene. Officer Goeltz was no less than thirty or forty feet from Patrick

when the chase ended. Earlier, Officer Goeltz had radioed instructions to set up a 

 After 

Patrick emerged from the dumpster, Deputy Moorman immediately identified Patrick by 

his neck tattoo. Patrick was not armed and did not appear to be armed, although his 

clothes were ruffled and his shirt was not tucked. Deputy Moorman and Patrick were 

between six and eight feet apart when they first encountered each other. Deputy 

Moorman ordered Patrick to get on the ground but Patrick denies ever hearing anything. 

Officer Moyer then approached Patrick, who took off running when Officer Moyer got 

within ten feet of him.

 1 Specifically, Patrick disputes whether Deputy Moorman warned him and whether there 

was a perimeter of officers on Berkshire Boulevard. For reasons discussed infra, these 

disputes do not affect our analysis.
5

perimeter of officers on Berkshire Boulevard to cut off Patrick at the intersection of 

Colony Drive and Paper Mill Road. The chase lasted only a few seconds and, according 

to Patrick, he only ran between four and six feet before being tased.

Deputy Moorman was gaining ground on Patrick as he was heading towards 

Berkshire Boulevard and he believed that Patrick might run into a medical office building 

that was in his path and open to the public. Deputy Moorman yelled “Taser, Taser, 

Taser” as a warning, but Patrick denies this fact. When Patrick was about thirty yards 

from the medical building, and ten to fifteen feet from Deputy Moorman, Deputy 

Moorman tased him. One taser probe struck Patrick in his back and one struck him in the 

back of his head. Deputy Moorman applied one five-second burst of his taser, which

paralyzed Patrick’s muscles and caused him to fall to the ground face first, without the 

ability to brace himself. As a result of the fall, Patrick suffered several broken bones, 

deep cuts to his face, and memory loss for two months. 

In deploying his taser, Deputy Moorman’s primary training came from the Berks 

County Sheriff’s Department taser policy. The policy warns against aiming a taser at a 

suspect’s head and against taser use if a running suspect might “fall from a significant 

height,” “fall into the path of oncoming vehicles or into operating machinery,” or “fall 

into water where the subject is likely to drown.”2

 2 While one probe struck Patrick in the head, he offers no evidence from which it could 

be inferred that the taser was aimed at his head.

 (App. 508 (Berks County Sheriff’s 

Department Taser Policy § 3.1.19).) The policy also prohibits taser use when the suspect 
6

is merely exhibiting passive or non-physical resistance. (Id.) Despite these precautions, 

the policy condones taser use when there is an “immediate and articulable threat of bodily 

harm to any person” and where exigent circumstances make it unfeasible “to control the 

subject in some lesser, readily available and feasible manner, or use [] a lesser means of 

force”. (Id.)

II. STATEMENT OF JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. § 1331 and we have 

jurisdiction under 28 U.S.C. § 1291. 

We review a district court’s decision to admit evidence for an abuse of discretion. 

United States v. Benjamin, 711 F.3d 371, 380 (3d Cir. 2013). We review a district court’s 

grant of summary judgment de novo. Kopec v. Tate, 361 F.3d 772, 775 (3d Cir. 2004). 

Summary judgment may only be granted if there is no genuine dispute as to a material 

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 

56(a). All reasonable inferences must be drawn in favor of the non-moving party. 

Kopec, 361 F.3d at 775.

III. ANALYSIS

The three issues on appeal are 1) whether part of Patrick’s expert’s testimony was 

properly excluded by the District Court, 2) whether Deputy Moorman’s use of force was 
7

reasonable, and 3) whether Deputy Moorman is entitled to qualified immunity.3

A. THE EXCLUSION OF EXPERT TESTIMONY

Patrick alleges that the District Court improperly excluded the testimony and 

report of Patrick’s police expert, James E. Baranowski, under Federal Rule of Evidence 

704. While Rule 704 allows experts to provide an opinion about the “ultimate issue” in a 

case, it prohibits experts from opining about the ultimate legal conclusion or about the 

law or legal standards. See Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 217 (3d 

Cir. 2006); United States v. Leo, 941 F.2d 181, 196-97 (3d Cir. 1991). 

 3 Patrick contends that the District Court overlooked that several material facts were 

genuinely disputed and did not draw the inferences from those facts in Patrick’s favor, 

but these facts were either not disputed or were not material. As to whether Deputy 

Moorman orally warned Patrick, Patrick did not affirmatively and unequivocally 

controvert Deputy Moorman’s testimony to the extent necessary to put the fact in dispute. 

See Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 263 (3d Cir. 2012)

(noting that a lack of knowledge cannot create a genuine dispute of material fact where it 

is contradicted by reliable evidence). As to the nature of the police perimeter, there is no 

evidence that the perimeter was positioned to intercept Patrick, if there was even a 

perimeter established at all. Patrick has not provided any evidence that there were any 

other officers in the immediate vicinity of the chase on Berkshire Boulevard other than 

Deputy Moorman, Officer Goeltz, and Officer Moyer. As to whether the other available 

methods of force would be equally likely to cause injury, this was not a disputed fact but 

reflects the District Court’s reasonableness analysis. More to the point, the District Court 

did not say that the alternatives were equally likely to cause injury, but only said that use 

of a taser was not so much more dangerous than the alternatives. See Patrick v. 

Moorman, 855 F. Supp. 2d 392, 403 (E.D. Pa. 2012).
8

The boundaries of Rule 704 are often hazy, so our Circuit has established that 

expert testimony becomes impermissible if the expert’s opinion would interfere with the 

district court’s “pivotal role in explaining the law to the jury”. Berckeley, 455 F.3d at 

217. In his testimony, Baranowski essentially opined that Deputy Moorman’s actions 

were unreasonable and about what a reasonable officer would have done. In a § 1983 

suit, “reasonableness” is practically interchangeable with “excessiveness”, so Baranowski 

might as well have opined that Deputy Moorman’s use of force was excessive.

Accordingly, in navigating this hazy Rule 704 line, the District Court did not 

abuse its discretion in excluding those parts of Baranowski’s testimony which opined on 

the reasonableness of Deputy Moorman’s actions.4

 

B. EXCESSIVE FORCE

Under § 1983, the use of excessive force to effect an arrest violates a suspect’s 

Fourth Amendment rights. Graham v. Conner, 490 U.S. 386, 395-96 (1989). Excessive 

force must be examined objectively since officers must use force that is objectively 

reasonable from the perspective of a reasonable officer. Id. at 396-97; Kopec, 361 F.3d at

776-77. The totality of the circumstances inquiry set forth in Graham identified specific 

 4 Patrick claims that the District Court excluded the entirety of Baranowski’s testimony, 

but the District Court expressly explained that it would only “ignore Baranowski’s 

opinions as to what a ‘reasonable officer’ would have done under the circumstances.” 

Patrick, 855 F. Supp. 2d at 402 n.9.
9

factors for courts to consider, including 1) “the severity of the crime”, 2) the “immediate 

threat” posed by the suspect to officers or others, and 3) whether the suspect was 

“actively resisting arrest” or “evad[ing] arrest by flight”. Graham, 490 U.S. at 396. Our 

Circuit has expanded this list of factors to include 1) whether the suspect is “violent or 

dangerous”, 2) the “duration” of the force, 3) whether the force was used to make an 

arrest, 4) the “possibility” that the suspect is armed, and 5) the number of people with 

whom the police must contend. Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997). 

Things not to be considered include the officer’s intentions and motivations, be

they good or bad. Graham, 490 U.S. at 397. Critically, the objective analysis cannot be 

skewed by 20/20 hindsight since courts must appreciate that officers are forced to make 

split-second decisions. Id. at 396-97. Consequently, despite Patrick’s contention, it does 

not matter whether Deputy Moorman was aiming for Patrick’s head and Patrick’s injuries 

have very little bearing. 

Applied to Deputy Moorman, all three Graham factors indicate that Patrick’s 

tasing was reasonable. First, as to the severity of the crime, robbing a bank is a very 

serious crime, particularly when done with a demand note. Second, as to the threat of 

danger, Patrick did pose a threat to surrounding bystanders. Even though there were no 

reports that he had acted aggressively or threateningly towards bystanders, no reasonable 

officer would assume that a bank robber is not dangerous. In addition, the fact that

Patrick had not used a weapon during the robbery or his encounters with bystanders does 

not mean that he did not have a weapon or would not have acquired a weapon as the 
10

chase progressed. Moreover, since Patrick fled to avoid arrest, Deputy Moorman could 

have reasonably assumed that Patrick might take other extreme measures, such as 

harming a bystander, to continue evading arrest. Third, as to Patrick’s resisting arrest, he 

was clearly running to avoid arrest and was being completely non-compliant with Deputy 

Moorman. The moment he saw Deputy Moorman, he took off running and did not give 

Deputy Moorman the opportunity to use less intrusive means of apprehension. 

The reasonableness of Deputy Moorman’s tasing is further bolstered by his 

adherence to the Berks County Sheriff’s Department Taser Policy. While Patrick was 

running across pavement, there was no risk of him falling from a significant height or 

into oncoming traffic or water. Although department policy required that Deputy 

Moorman resort to less forceful means if possible, it does not appear that Deputy 

Moorman could have reliably resorted to his mace, baton, or bodily force due to the 

distance between him and Patrick (which was ten to fifteen feet at the time of the tasing).5

 5 It does not seem possible for him to have maced Patrick effectively, both because he 

was ten to fifteen feet in front of Deputy Moorman and because he was not facing Deputy 

Moorman. While macing Patrick from behind might have irritated Patrick’s sinuses and 

skin, slowing him down, there is no evidence that it would have immediately ended his 

flight. Aside from the mace, there is no evidence that Deputy Moorman could have used 

the baton to trip Patrick. Although Deputy Moorman was gaining on Patrick, there was 

still a ten-to-fifteen foot gap between them that would have prevented him from using his 

baton against Patrick’s legs. While Patrick contends that Officer Goeltz testified that he 

could have caught up with Patrick and tackled him, that is only speculation and says 

nothing about Deputy Moorman’s ability to tackle Patrick. 

 

Patrick argues that tasing was unwarranted because Officer Goeltz and Officer Moyer 

could have assisted Deputy Moorman in tackling him, but Deputy Moorman was actually 
11

following department policy by using his taser in their presence. (App. 509 (instructing 

in § 3.1.21 that “[d]eputies should, when feasible, attempt to obtain sufficient back-up 

before deploying the Taser”).) 

Accordingly, Deputy Moorman’s tasing of Patrick was not an excessive use of 

force and did not violate his constitutional rights.

C. QUALIFIED IMMUNITY

An officer is entitled to qualified immunity if he meets at least one of a two prong

inquiry. Reedy v. Evanson, 615 F.3d 197, 223-24 (3d Cir. 2010) (citing Saucier v. Katz, 

533 U.S. 194, 201 (2001)). The first prong of the qualified immunity inquiry asks if there 

is a constitutional violation, which we have just decided there was not. If there is a 

constitutional violation, the second prong of the inquiry asks whether the constitutional 

right was clearly established. Kopec, 361 F.3d at 776 (citing Bennett v. Murphy, 274 

F.3d 133, 136 (3d Cir. 2002)); Reedy, 615 F.3d at 223-24. 

Based on the foregoing, we need not reach the second prong of the qualified 

immunity analysis since Patrick’s constitutional rights were not violated. Deputy 

Moorman’s actions were reasonable and, therefore, he satisfies the first prong of the 

inquiry and is entitled to qualified immunity. 

IV. CONCLUSION

For the foregoing reasons, we will affirm the District Court’s dismissal of 
12

Patrick’s claim on summary judgment.