[J-106-2018] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SHIRETTA JUSTICE, : No. 17 EAP 2018
:
Appellant : Appeal from the Order of
: Commonwealth Court entered on
: 11/14/2017 at No. 1439 CD 2016
v. : reversing the Order entered on
: 07/19/2016 in the Court of Common
: Pleas, Philadelphia County, Civil
PENNSYLVANIA STATE POLICE : Division at N. 1729 September Term
TROOPER LOMBARDO : 2014
:
Appellee : ARGUED: December 6, 2018
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: May 31, 2019
I fully join the majority opinion, which reinforces the critical function of the jury. I
write separately to acknowledge the importance of sovereign immunity within the context
of police work, and distinguish the instant case from circumstances necessitating such
protection.
By nature of their employment in law enforcement, the state police necessarily
insert themselves into perilous situations where their role is to minimize, if not eliminate,
threats of harm to the public safety. State troopers regularly encounter environments rife
with the potential for injury to others, including suspected perpetrators and bystanders,
and to themselves, which they unquestionably must balance against the potential for
greater danger to the public when they take action in such environments. As officers make
expedited decisions based on a split-second calculus weighing a myriad of risks, the
assertion of authority, oftentimes accompanied by the use of force, is a day-in, day-out
necessity of the occupation.
In such situations, sovereign immunity rightfully prevents the threat of personal
liability from factoring into these critical moments of decision-making. By protecting police
officers from personal liability for certain acts of force, the immunity affords police modest
flexibility to make instantaneous judgment calls. The immunity likewise protects the public
from officers that hesitate to take necessary action in the face of a safety threat while they
deliberate over the threat of liability. Due to the dire consequences of an officer’s
hesitation when circumstances require immediate, decisive action, in my view, the use of
force by police in such situations is generally expectable, within the scope of employment,
and among the most essential government activities provided immunity.
However, I do not advocate for an absolute immunity to protect bad acts even
though they may be committed by on-duty police officers. While an emergent situation
necessitating an instantaneous judgment call may typically yield an expectable use of
force in the interest of public safety, such circumstances do not appear to be within the
facts of the case before us.
On review of Trooper Lombardo’s conduct, as depicted by the cellphone footage
taken by Ms. Justice’s stepson and viewed by the jury, it is evident there is no temporal
link between Trooper Lombardo’s use of force upon Ms. Justice — pushing her against a
barrier and twisting her arm behind her in a visibly painful manner prior to handcuffing her
— and any perceivable threat to her safety, to her stepson’s safety, or to the safety of
other motorists. She had already exited her vehicle, removed herself from the
expressway, and climbed over the Jersey barriers to a protected embankment. In
addition, the footage reveals Trooper Lombardo clearly stating, “I changed my mind,” in
response to Ms. Justice’s inquiry about why she had to exit her car for towing after she
[J-106-2018] [MO: Donohue, J.] - 2
had already enlisted the assistance of friends to remove it at Trooper Lombardo’s
direction. The jury may well have perceived from Trooper Lombardo’s statement that he
had time to reconsider his chosen course of action, notably to one that removed Ms.
Justice to the very location he later deemed necessary to remove her from for her safety.
The cellphone footage additionally supports a finding Trooper Lombardo stepped outside
his authority because, despite his allegations of Ms. Justice’s profanity and any
intimations her behavior might support an arrest for disorderly conduct, see N.T. 3/11/16
at 113-14, 116-17, he restrained and handcuffed her, but did not charge her.1
In my view, where, as here, the use of force by a police officer is attenuated from
any imminent threat to safety and not incident to an arrest, such force may be considered
“unexpectable,” and is less likely to fall within the scope of employment.
Nevertheless, the majority does not hold Trooper Lombardo’s conduct was, as a
matter of law, personally motivated, or comprised the use of unexpected force. Rather,
as the majority explains, those questions were properly put to the jury. The evidence
reasonably supported the jury’s conclusion Trooper Lombardo acted outside the scope
of his employment.
Justice Todd joins this concurring opinion.
1 I recognize the use of profanity, on its own, would not sustain a charge of disorderly
conduct, which additionally requires an intent to cause public inconvenience, annoyance
or alarm, or the reckless creation of a risk. See 18 Pa.C.S. §5503.
[J-106-2018] [MO: Donohue, J.] - 3