PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-1042
_____________
THE ESTATE OF ANDREA YVONNE ARRINGTON,
Deceased, by and through the Administratrix of the Estate,
Audra L. Thornton Arrington
v.
JOHN MICHAEL, Police Officer; CITY OF CHESTER
John Michael,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 11-cv-4534)
District Judge: Hon. J. Curtis Joyner
_______________
Argued
October 17, 2013
Before: RENDELL, JORDAN and LIPEZ*, Circuit Judges.
(Filed: December 24, 2013)
_______________
Suzanne McDonough [ARGUED]
Holsten & Associates
One Olive Street
Media, PA 19063
Counsel for Appellant
Frank N. DiMeo, Jr. [ARGUED]
James D. Rosen
Rosen, Schafer & DiMeo
121 S. Broad Street – Ste. 800
Philadelphia, PA 19107
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
In this substantive due process action involving the
murder of a young woman, Officer John Michael of the
Chester, Pennsylvania, police force appeals the denial of
summary judgment by the United States District Court for the
_______________
*Honorable Kermit V. Lipez, United States Court of
Appeals Senior Judge for the First Circuit, sitting by
designation.
2
Eastern District of Pennsylvania. He claims both qualified
and statutory immunity. Since his conduct falls squarely
within the immunity established by the Child Safety Lock Act
of 2005, 18 U.S.C. § 922(z)(3), we need not address his claim
for qualified immunity and will reverse the decision of the
District Court with instructions to dismiss the complaint.
I. Factual Background and Procedural History
On July 20, 2009, Michael’s son Aaron shot Andrea
Arrington eight times, killing her. It was the tragic
culmination of an abusive relationship. Aaron used his
father’s service-issued Smith & Wesson handgun in the
murder.
Arrington and Aaron had lived together in an
apartment with their infant son from 2007 to July 2, 2009,
when Arrington petitioned for and obtained a temporary
protection from abuse order (the “PFA”) against Aaron. The
order described Aaron’s history of violence against
Arrington, including incidents of choking, slapping, and, on
one occasion two years prior to the PFA’s issuance, giving
Arrington a black eye. Those assaults were not the only
illegality in Aaron’s past. He had a criminal history that
included check fraud (for which he was serving probation at
the time he murdered Arrington), intimidation of another
woman with whom he had a child, and shoplifting as a
juvenile. He had also been charged with “indecent
assault/rape” but was eventually found not guilty. (App. at
408.) Michael was aware of his son’s several encounters with
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the law.1 Although Aaron was a legal adult, he continued to
have a room in his father’s home, to drive his father’s truck,
and to receive mail at his father’s address.
After the temporary PFA was issued, Michael met with
Aaron to discuss the PFA. Aaron considered the order to be
inaccurate and told Michael that he would go to court on
July 9, as required, to contest it in person. Michael advised
Aaron that, in the meantime, he should not try to retrieve his
personal belongings from Arrington’s apartment unless
escorted by police officers. On July 9, 2009, a final PFA was
entered in the Delaware County Court of Common Pleas,
which extended the terms of the temporary PFA by six
months. Pursuant to the final PFA, Aaron was evicted from
the apartment and forbidden from possessing firearms.
On July 14, 2009 – five days after the final PFA was
issued and less than a week before the murder – Aaron
violated the PFA by returning to Arrington’s apartment and
threatening to “cut her up” if she reported the violation.
(Appellee’s Br. at 6; App. at 147.) Despite that threat,
Arrington promptly called the police. Chester Police Officer
William Swanson was on patrol and responded to the call,
which became the subject of a criminal complaint that
Swanson filed against Aaron the next day. An arrest warrant
for Aaron issued several days later, on July 20, 2009.
1
Michael also knew that two of Aaron’s children had
died under mysterious circumstances while in Aaron’s
custody, including the child of the woman he had intimidated.
After he murdered Arrington, Aaron confessed to two of his
friends that he had killed those children.
4
Soon after Aaron left Arrington’s apartment on
July 14, Michael received a phone call from one of Aaron’s
friends, stating that Aaron had violated the PFA. Michael
subsequently contacted Captain Anita Amaro, the chief of the
Chester Police Department, to find out “[w]hat was going
on.” (App. at 424.) The Captain confirmed that Aaron had
violated the PFA and that a warrant would soon be issued for
his arrest; she also provided Michael a copy of Officer
Swanson’s complaint. Although Michael then attempted to
call his son several times, he was unable to reach him.
With a planned vacation to Florida only days away and
his son still out of contact, Michael resorted to writing Aaron
two notes on July 16. He left the notes for Aaron on his
dining room table, alongside Aaron’s mail, hoping that Aaron
would see them when he came over to pick up the mail. The
notes reveal Michael pleading with Aaron to turn himself in.
In the first note, Michael said that Aaron’s violation was “not
that serious” and that, if Aaron cooperated with the police,
Michael would not only pay him a “bonus” of $1,500 but also
post his bail. (Id. at 225.) At the same time, he asked Aaron
to return his truck or else he would report it “stolen/or
missing.” (Id. at 244.) In the second note, Michael noted
that, in the “worse scenario,” Aaron would have to go to jail
but that plenty of other people have been locked up. (Id. at
226.) Michael also claimed that, because he was a police
officer, Aaron would get “a courtesy break.” (Id.) In fact, he
said, he had already spoken to people about Aaron’s situation.
(Id. at 226-27.) Fatefully, Michael also left the copy of
Officer Swanson’s criminal complaint for Aaron to read,
which described Arrington’s report to the police, including
that Aaron had threatened to “cut her up” if she reported the
PFA violation.
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The day after Michael wrote his letters to Aaron,
Aaron left a voice-message on Michael’s home answering
machine, saying that he was “okay” and would turn himself in
when the arrest warrant was issued. (Id. at 425.) At that
point, Aaron had not yet returned to his father’s home and
read the notes or the complaint. Michael heard the message
that same day but did not remove the notes or the criminal
complaint. The papers remained undisturbed on the dining
room table when Michael departed for Florida on July 20.
In preparing to leave on vacation, Michael brought his
service weapon home with him and locked it in his bedroom,
as he customarily did when away. He had a wooden bedroom
door that he locked with a “single-bolt lock,” keeping one key
on his key chain and the other hidden in the kitchen. (Id. at
415-16.) Inside the bedroom, Michael locked the gun itself
with a police department-issued gun lock. He hid one key to
the gun lock in a dresser drawer and the other he kept in his
possession. He stored the magazine and the ammunition
separately in a duffle bag, which he kept in a corner of the
bedroom.
Michael maintains that he complied with standard
police policy in storing his weapon. According to a Chester
Police Department directive, it was optional, though
“preferred,” for off-duty officers to take their weapons home.
(Id. at 380.) Captain James Chubb, a firearms instructor for
the Department, stated in his deposition that, while “nothing
is as safe as no weapon at home” (id. at 504), keeping a
weapon at home is preferable to keeping it at the police
station. Captain Chubb said, “it is a safety issue if an officer
is done [with] work, puts his weapon in the locker, and then
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decides to walk out to his vehicle in full uniform with no
gun.” (Id.)
At some point on July 20, 2009, while Michael was in
Florida, Aaron went to his father’s home and, after finishing a
bottle of 99-proof alcohol, read the notes and police
complaint that his father had left for him, moving them from
the dining room table to the bedroom he customarily slept in
while at his father’s home. He then broke down his father’s
bedroom door and ransacked the room. He found the gun
lock key in his father’s drawer and the ammunition in the
duffle bag. He next turned to a methodical search of the
Internet to learn how to load the weapon, disengage the
safety, and otherwise operate the gun. After that, he tracked
Arrington down and shot her to death.
Following the murder, Aaron telephoned two of his
friends and confessed to the crime – including a description
of breaking into his father’s bedroom and learning online how
to operate the weapon. Shortly thereafter, Chester police
officers shot and killed Aaron while he stood outside his
father’s home, brandishing the pistol.
Arrington’s estate (the “Estate”), by and through its
Administratrix, brought this action against Michael for civil
damages pursuant to 42 U.S.C. § 1983 for the deprivation of
Arrington’s substantive due process right to bodily integrity.
The District Court denied Michael’s motion for summary
judgment asserting qualified immunity and statutory
immunity. The Court found that “[m]aterial disputes [] exist
about the factual predicates necessary to apply the doctrine of
qualified immunity to shield Officer Michael from suit.” (Id.
at 23.) With respect to the statutory immunity claim under
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the Child Safety Lock Act of 2005 (“CSLA”), which grants
immunity when a handgun is made “inoperable” by the use of
a safety lock, the Court held the statute to be ambiguous and
similarly determined that “material factual disputes exist on
this record about whether the statute immunizes Officer
Michael from civil liability in these circumstances.” (Id.)
This timely appeal followed.
II. Jurisdiction and Standard of Review
As a threshold matter, we must consider our
jurisdiction.
Under 28 U.S.C. § 1291, we are empowered to review
district court rulings that finally resolve cases, which the
denial of immunity here clearly does not. However, in Cohen
v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), the
Supreme Court noted that there exists a “small class [of
decisions] which finally determine claims of right separable
from, and collateral to, rights asserted in the action, [that are]
too important to be denied review and too independent of the
cause itself to require that appellate consideration be deferred
until the whole case is adjudicated.” Id. at 546. Such
decisions can be reviewed on appeal before a final judgment
is rendered. Rulings on qualified immunity are a common
example. While a judicial creation, qualified immunity is, as
the Supreme Court has long recognized, an “immunity from
suit rather than a mere defense to liability; and ... is
effectively lost if a case is erroneously permitted to go to
trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). As
more fully discussed below, the statutory immunity provided
in the CSLA is likewise an immunity from suit, and “[w]hen
a policy is embodied in a constitutional or statutory provision
8
entitling a party to immunity from suit (a rare form of
protection), there is little room for the judiciary to gainsay its
‘importance.’”2 Digital Equip. Corp. v. Desktop Direct, Inc.,
511 U.S. 863, 879 (1994). We therefore treat the denial of
such immunity as a final order fitting within Cohen’s “small
class” of decisions, and adjudge the order here to be
immediately appealable.
We exercise plenary review over a district court’s
denial of summary judgment. Deweese v. Nat’l R.R.
Passenger Corp. (Amtrak), 590 F.3d 239, 244 n.8 (3d Cir.
2009). More particularly, because the denial of immunity in
this case turns on statutory construction, we review the matter
de novo, recognizing that statutory construction is “peculiarly
appropriate for independent judicial ascertainment.” Dunat v.
Hurney, 297 F.2d 744, 746 (3d Cir. 1961) (quoting O’Leary
2
We note an additional comparison to qualified
immunity. That doctrine furthers a public interest in “the
need to induce government officials to show reasonable
initiative when the relevant law is not ‘clearly established.’”
Will v. Hallock, 546 U.S. 345, 353 (2006) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). It extends immunity
from suit so long as the behavior fits within the doctrine’s
parameters. Similarly, the CSLA reflects a congressional
judgment about the parameters of reasonable behavior in
securing guns (and thus preventing violence); it extends
immunity when the behavior fits within the parameters
Congress defined. That congressional judgment extends a
narrowly defined, rarely extended protection, see Digital
Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 879
(1994), one sufficiently analogous to qualified immunity that
we find its denial immediately appealable.
9
v. Brown-Pacific-Maxon, 340 U.S. 504, 508 (1951)) (internal
quotation marks omitted); cf. Bayer v. Monroe Cnty. Children
& Youth Servs., 577 F.3d 186, 191 (3d Cir. 2009) (“Under the
collateral order doctrine, 28 U.S.C. § 1291 confers appellate
jurisdiction over the District Court's denial, at the summary-
judgment stage, of defendants’ claim that they are entitled to
absolute or qualified immunity, to the extent that denial turns
on questions of law.”).
III. Discussion
The CSLA provides, in pertinent part:
(z) Secure Gun Storage or Safety Device. –
(3) Liability for use. –
(A) In general. –
Notwithstanding any other provision of
law, a person who has lawful possession
and control of a handgun, and who uses a
secure gun storage or safety device with
the handgun, shall be entitled to
immunity from a qualified civil liability
action.
(B) Prospective actions. – A
qualified civil liability action may not be
brought in any Federal or State court.
(C) Defined term. – As used in
this paragraph, the term “qualified civil
liability action”--
(i) means a civil action
brought by any person against a
person described in subparagraph
(A) for damages resulting from
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the criminal or unlawful misuse of
the handgun by a third party, if--
(I) the handgun was
accessed by another person
who did not have the
permission or authorization
of the person having lawful
possession and control of
the handgun to have access
to it; and
(II) at the time
access was gained by the
person not so authorized,
the handgun had been
made inoperable by use of
a secure gun storage or
safety device; and
(ii) shall not include an
action brought against the person
having lawful possession and
control of the handgun for
negligent entrustment or
negligence per se.
18 U.S.C. § 922(z)(3) (emphasis added).
The District Court concluded that there is ambiguity in
the italicized language, and therefore that the present dispute
is appropriate for jury consideration. According to the Court,
Congress’ use of the term ‘inoperable’ [within
§ 922(z)(3)] is puzzling. A strict reading of the
term ‘inoperable’ would make it impossible for
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the immunity provision to apply at all [because]
a third-party, no matter how determined, cannot
fire a truly ‘inoperable’ firearm and could,
therefore, cause no harm which might result in
liability from which the statute may immunize
him or her.
(App. at 24-25.) On the other hand, the District Court noted,
“a loose reading of the term ‘inoperable’ does not accord with
the word’s plain meaning.” (Id. at 25.) Thus, the Court
decided that “the intended scope of the immunity provision
[is] ambiguous” and warranted resort to legislative history to
ascertain Congress’s true intent. (Id.) Citing one
Congressman’s interpretation that the immunity language
“neither creates nor eliminates liability for gun owners who
use safety devices,” the Court applied “common law rules” to
determine that “the secure gun storage or safety device must
make the firearm inoperable by reasonably foreseeable
means.” (Id. at 26 (emphasis added) (internal quotation
marks omitted).) Because of what the Court found to be
“material factual disputes [] about whether Officer Michael’s
actions actually rendered his service weapon ‘inoperable’ by
reasonably foreseeable means” (id. at 27), it denied Michael’s
motion for summary judgment based on his claim of statutory
immunity.
We disagree with that reasoning, which went awry at
the first step. There is nothing ambiguous in the language of
§ 922(z)(3). It is true that, in the face of statutory ambiguity
or uncertainty, we may “have recourse to the legislative
history of the measure and the statements by those in charge
of it during its consideration by the Congress,” United States
v. Great N. Ry., 287 U.S. 144, 154-55 (1932), but “we do not
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resort to legislative history to cloud a statutory text that is
clear,” Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994).
In this case, the interpretation of the statute is not a
“factual dispute” that requires jury deliberation, but rather a
pure question of law. Forsyth, 472 U.S. at 528. By its terms,
the CSLA provides that, as long as an individual with lawful
control of a gun has utilized a secure gun storage or safety
device and has not authorized or permitted access to the gun,
he or she is immune from suit in any “qualified civil liability
action.” 18 U.S.C. § 922(z)(3)(A). A qualified civil liability
action is defined, with limited exceptions not relevant here, as
a suit “for damages resulting from the criminal or unlawful
misuse of the handgun by a third party” when there was
unauthorized access to the handgun and “the handgun had
been made inoperable by use of a secure gun storage or safety
device.” Id. § 922(z)(3)(C). The present fact pattern is
plainly within that definition. The access gained by Aaron
was clearly unauthorized. Moreover, the meaning of the
word “inoperable” is clear. It refers to the use of a secure gun
storage or safety device to prevent a gun from firing, the
pertinent language being “inoperable by use of a secure gun
storage or safety device.” Id. § 922(z)(3)(C)(i)(II) (emphasis
added). In other words, an individual is immune from suit if
the handgun was rendered unusable because of a gun storage
or safety device.
Taking its cue from the District Court, the Estate now
disputes Michael’s assertion of statutory immunity because of
that same “ambiguity” surrounding the word “inoperable.”
(Appellee’s Br. at 28-29.) The Estate contends that “a
reasonable jury may find having the key near the lock is the
equivalent of not using the lock.” (Id. at 29.) But the Estate
fails to consider the plain facts before us: that the gun was
13
locked behind a dead-bolted door, its key hidden in a dresser-
drawer, and its ammunition separately hidden in a duffle bag
in the corner of the bedroom. Outside of baldly challenging
that the gun was indeed inoperable, the Estate never disputes
that Michael’s conduct in fact met the conditions set for
immunity – perhaps, because it could not do so with any
credibility on this record. Not only did Michael never give
Aaron “permission or authorization ... to have access to [the
gun],” 18 U.S.C. § 922(z)(3), but Michael used a “secure
gun storage or safety device” in storing his weapon. Id. His
conduct in no other way removed him from the statute’s
protection. While the statute abrogates immunity when a gun
owner negligently entrusts a gun or acts with negligence per
se, id. § 922(z)(3)(C)(ii), the Estate never expressly argues
that Michael acted with such negligence. But even if it had,
nothing in the record suggests that Michael’s conduct with
respect to his handgun was negligent, let alone that it rose to
the level of negligence that would cause him to lose the
statutory grant of immunity. 3 On the contrary, Michael took
reasonable precautions to ensure that nobody – including
Aaron – would have access to his gun. Given the significant
care that Michael had taken to secure the weapon, the present
§ 1983 action appears to be exactly the kind of case that
Congress wanted to prevent when it passed the CSLA. While
3
Negligent entrustment is defined as “[t]he act of
leaving a dangerous article (such as a gun or car) with a
person who the lender knows or, should know, is likely to use
it in an unreasonably risky manner,” while negligence per se
is defined as “[n]egligence established as a matter of law, so
that breach of the duty is not a jury question.” BLACK’S LAW
DICTIONARY 1135 (9th ed. 2009). Michael’s conduct does
not meet either definition.
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there may exist circumstances that give rise to a claim of
negligent entrustment or negligence per se, or where the use
of a gun lock or safety device does not render a gun
inoperable, those are not questions we need now consider.
The facts of this case establish that Michael’s conduct is fully
protected by the CSLA and he is immune from suit.
That conclusion is unaffected by the District Court’s
reliance on a single Congressman’s comments in the
legislative history. “[S]elective invocation of fragments of
the floor debate is an object lesson in the perils of appealing
to ... legislative history as a guide to statutory meaning. ...
The law is what Congress enacts, not what its members say
on the floor.” Szehinskyj v. Att’y Gen., 432 F.3d 253, 256
(3d Cir. 2005). Congress’s decision to grant immunity from
suit in the CSLA is embodied in clear language that we are
bound to follow.4 Officer Michael is, by the terms of the
statute, entitled to that immunity, and the claims against him
must be dismissed.
IV. Conclusion
For the foregoing reasons, we will reverse the District
Court’s order and remand with instructions to dismiss the
complaint.
4
No one has argued that the CSLA unlawfully
impinges on the constitutional guarantees protected by 42
U.S.C. § 1983, and, given the specific and circumscribed
character of the immunity, eschewing such an argument
appears to have been wise.
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