NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 21-2468

TAHARQA DEAN

v.

BOROUGH OF GLASSBORO; ALEX FANFARILLO, Former Police Chief; OFFICER MICHAEL FANFARILLO; KYLE SNYDER; GEORGE MOORE; OFFICER DOMINIC VISCEGLIA; OFFICER BARRY GRAY; JOHN DOES 1 THROUGH 10, individually and in their official capacities, jointly, severally, and in the alternative, Appellants

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 1:17-cv-07344) District Judge: Honorable Noel L. Hillman

Submitted Under Third Circuit L.A.R. 34.1(a) December 6, 2022

Before: SHWARTZ, MATEY, and FUENTES, Circuit Judges.

(Opinion filed: March 22, 2023)

OPINION

 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. MATEY, Circuit Judge.

Taharqa Dean had a seizure that required emergency medical assistance and

suffered injuries during the response. He brought this excessive force suit against a group

of responding officers. The District Court denied the officers’ request for qualified

immunity, citing a list of disputed facts. But the District Court should have evaluated the

materiality of these facts in light of the Supreme Court’s test for objective reasonableness,

determined if the officers violated a clearly established right, and performed this analysis

for each defendant officer. So we will vacate the District Court’s order and remand for

further proceedings.1

I.

The District Court ruled that “disputed material facts must be resolved by a jury

prior to the Court’s determination of whether Defendants are entitled to qualified

immunity.” App. 30. Only with these answers, the District Court concluded, would it then

be able to “make the ultimate determination as to whether Defendants’ use of force on

Plaintiff was reasonable.” App. 30. But “qualified immunity is ‘an immunity from suit

1 The District Court had jurisdiction under

and 1367(a). We have jurisdiction over this interlocutory appeal under the collateral order doctrine. While “[a]n order denying a motion for summary judgment is generally not a final decision within the meaning of [28 U.S.C.] § 1291,” “that general rule does not apply when the summary judgment motion is based on a claim of qualified immunity.” Plumhoff v. Rickard,

(2014). Under the collateral order doctrine, “our review is plenary and ‘strictly limited to the legal questions involved.’” James v. N.J. State Police,

(3d Cir. 2020) (quoting In re Montgomery Cnty.,

, 372 (3d Cir. 2000)). “We lack jurisdiction to review the District Court’s determination that a factual dispute is genuine, but we have jurisdiction to consider whether the disputed fact is material to the issue on which a party sought summary judgment.” Id. 2 rather than a mere defense to liability[,]’” meaning immunity “is effectively lost if a case

is erroneously permitted to go to trial.” Pearson v. Callahan,

(2009)

(quoting Mitchell v. Forsyth,

(1985)). This makes the District Court’s

path problematic for three reasons.

First, because summary judgment turns on disputes over material facts, denying a

motion under Rule 56 requires “specify[ing] those material facts that are and are not subject

to genuine dispute and explain[ing] their materiality.” Forbes v. Twp. of Lower Merion,

, 146 (3d Cir. 2002); see also James v. N.J. State Police,

, 169

n.4 (3d Cir. 2020) (noting district court “did not specify which material facts were in

dispute or explain their materiality”). Here, the District Court collected several examples

of “disputed facts,” App. 28–30, but did not explain their materiality.

In addition, the Court stated that the parties dispute whether Dean 1) intentionally

tried to kick Officer Fanfarillo, 2) purposefully attempted to disarm Officer Snyder,

3) purposefully attempted to bite the officers, and 4) continued his resistance because of

the seizure or pain. But none of these examples relate to objective reasonableness because

they center on Dean’s state of mind, as opposed to “the facts and circumstances

confronting” the officers. Graham v. Connor,

(1989). Instead, the

analysis should center on how a reasonable officer would have perceived Dean’s actions.

Moreover, the Supreme Court has repeatedly and recently explained which “facts

and circumstances” are material to the qualified immunity analysis: “the relationship

between the need for the use of force and the amount of force used; the extent of the

plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force;

3 the severity of the security problem at issue; the threat reasonably perceived by the officer;

and whether the plaintiff was actively resisting.” Lombardo v. City of St. Louis,

(2021) (per curiam) (quoting Kingsley v. Hendrickson,

(2015)). This list of circumstances—known as the Kingsley factors—focuses on “only the

facts that were knowable to the defendant officers” at the time of the altercation. White v.

Pauly,

(2017) (per curiam). And although the factors are not “exclusive,”

they do “illustrate the types of objective circumstances potentially relevant to a

determination of excessive force.” Kingsley,

. 2

Second, even if disputed issues of material fact precluded a determination of

objective reasonableness, the District Court should have moved on to the “clearly

established” prong of qualified immunity. The Court “note[d] . . . the significance of Rivas

v. City of Passaic,

(3d Cir. 2004),” but stopped short of “reach[ing] the issue

of whether the right was clearly established.” App. 31–32 n.7. Instead, the District Court

cited Curley v. Klem,

, 211 & n.12 (3d Cir. 2007) to propose using a jury to

first resolve the disputed facts material to the qualified immunity analysis. But Curley

relied on the strict sequencing rule in Saucier v. Katz,

, 201 (2001). See Curley,

499 F.3d at 207–08 (“While the Saucier analytical approach has been criticized for being

unduly rigid and demanding resolution of constitutional issues when cases could be more

2 The Kingsley factors augment the traditional excessive force factors announced 26 years earlier in Graham: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham,

. And Lombardo confirms that courts should analyze the Kingsley factors in an excessive force case, in addition to the factors in Graham. See Lombardo,

& n.2. 4 simply disposed of on other grounds, its order of inquiry nevertheless remains mandatory.”

(citations omitted)). Saucier required judges to resolve issues of fact related to whether the

force used was objectively reasonable before considering whether clearly established law

prohibited the official’s actions. As Curley noted, the sequencing rule practically meant

that “immunity becomes no more than a mere defense, and a sometimes challenging one

to establish at that.” Id. at 208 (citation omitted).

That practice changed in 2009 when Pearson v. Callahan widened judicial

discretion and abandoned Saucier’s sequencing rule. See

. Pearson

explained that courts can assume a constitutional violation and immediately consider

whether the challenged actions were prohibited by clearly established law if that would end

the case. See

at 236–37. So after Pearson, courts may (and often should) resolve

qualified immunity claims without waiting for a jury to weigh in on disputed facts. See,

e.g., White,

(assessing whether “existing precedent . . . placed

the . . . constitutional question beyond debate” even though material facts remained in

dispute (citation omitted)).

“An official sued under § 1983 is entitled to qualified immunity unless it is shown

that the official violated a statutory or constitutional right that was ‘clearly established’ at

the time of the challenged conduct.” Plumhoff v. Rickard,

(2014). “And

a defendant cannot be said to have violated a clearly established right unless the right’s

contours were sufficiently definite that any reasonable official in the defendant’s shoes

would have understood that he was violating it.”

at 778–79. “In other words, ‘existing

5 precedent must have placed the statutory or constitutional question’ confronted by the

official ‘beyond debate.’”

(quoting Ashcroft v. al-Kidd,

, 741 (2011)).

How that question is framed matters because, at some level, any right is definite and

undebatable. All understand that “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated.” U.S. Const. amend. IV. But that is too general, too abstract to provide a

reasonable official proper guidance. Indeed, the Supreme Court has “repeatedly told

courts . . . not to define clearly established law at a high level of generality.” Plumhoff,

(quoting al-Kidd, 563 U.S. at 742). So the District Court must look for clearly

established law “in light of the specific context of the case, not as a broad general

proposition.” Mullenix v. Luna,

(2015) (per curiam) (quoting Brosseau v.

Haugen,

(2004) (per curiam)) (reversing because the lower court failed

to focus on the “dispositive question” of “whether the violative nature of particular conduct

is clearly established” (citation omitted)).

Third, “whenever a district court denies a public official qualified immunity at

summary judgment,” the court must “analyze separately, and state findings with respect to,

the specific conduct of each defendant.” Williams v. City of York,

(3d

Cir. 2020) (quoting Grant v. City of Pittsburgh,

(3d Cir. 1996)) (cleaned

up). This supervisory rule exists “to ensure that district courts enforce the tenet, ‘manifest

in our excessive force jurisprudence,’ that a ‘plaintiff alleging that one or more officers

engaged in unconstitutional conduct must establish the “personal involvement” of each

6 named defendant to survive summary judgment and take that defendant to trial.’”

at

257–58 (quoting Jutrowski v. Twp. of Riverdale,

(3d Cir. 2018)).

Rather than individually assessing the immunity of each officer, the District Court

assumed the actions of each were alike. So “we will remand this case to the district court

to redetermine the qualified immunity issue with respect to the conduct of each individual

defendant.” Grant,

.

II.

For these reasons, we will vacate the District Court’s summary judgment order and

remand for proceedings consistent with this opinion.

7