NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
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No. 11-4231
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STEVEN JEWELL,
Appellant
v.
RIDLEY TOWNSHIP; ROBERT M. SMITH, JR.;
ROBERT M. SMITH, SR.; LUIGI DISPIGNO;
JOSEPH CERRONE; MICHAEL A. BONGIORNO;
JERRY SCANLON, JOHN DOES 3-10
________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-09-cv-04947)
District Judge: Honorable R. Barclay Surrick
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Submitted Under Third Circuit LAR 34.1(a)
September 18, 2012
Before: SLOVITER, RENDELL, and HARDIMAN, Circuit Judges
(Filed: September 19, 2012 )
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OPINION
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SLOVITER, Circuit Judge.
This case concerns a tragic accident caused by an eighteen-year-old unlicensed
intoxicated driver who refused to pull over for the police. The pursuit ended when the
drunk driver collided with a vehicle in which the plaintiff Steven Jewell was a passenger.
Jewell suffered serious injuries, including paralysis. He filed a complaint, naming the
officers involved in the pursuit—Corporal Michael A. Bongiorno and Officer Gerard
Scanlan (collectively “the Officers”)—and the Township of Ridley (“Ridley”) as
defendants (collectively “the Defendants”), 1 and asserting claims under both 42 U.S.C.
§ 1983 and Pennsylvania tort law. Despite our sympathy for Jewell, we affirm the
District Court’s grant of summary judgment in favor of the Defendants.
I.
Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367, and
this court has jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over
the District Court’s order granting summary judgment. State Auto Prop. & Cas. Ins. Co.
v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009). Summary judgment must be granted
only “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
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The complaint also named various other individuals as defendants, all of whom
have been dismissed from this action.
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II.
Background
At approximately 10:45 PM on April 29, 2009, Ridley Township Police received a
tip that eighteen-year-old Robert Smith, Jr. was driving a blue Hyundai Santa Fe while
intoxicated. Corporal Bongiorno, who knew that Smith did not have a valid driver’s
license, and Officer Scanlan, who knew Smith from previous arrests, responded to the tip
by driving in separate vehicles to Smith’s home. While the Officers were sitting in their
parked cars at the street corner, a blue Santa Fe approached with only the parking lights
on. The driver turned the lights off, passed directly by the Officers, and turned away
down another street. Upon recognizing Smith as the driver, Corporal Bongiorno began
pursuing him with activated lights and sirens, and Officer Scanlan followed.
Smith swerved throughout the pursuit, which wound through just over a mile of
residential streets at speeds between fifteen and thirty-five miles per hour. Neither Smith
nor the Officers stopped at traffic signals or stop signs. Suddenly, Smith accelerated to
about forty-six miles per hour, ran a red light, and collided with a car in the middle of the
intersection. Jewell was a passenger in that car, and he suffered multiple injuries,
including paralysis. Smith’s blood alcohol level was 0.228, which is well above the legal
limit.
Both Officers had received basic pursuit training at police academies and also
received additional training when beginning work in Ridley. Cf. 37 Pa. Code § 203.1-
203.103 (outlining the administration of the Municipal Police Officers’ Education and
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Training Program). Both of the Officers were aware of the Ridley policy on police
pursuits, which provides:
SECTION 17: PURSUITS
a. Notify Police radio immediately when initiating a pursuit. (State
the reason)
b. When notifying radio, state “Emergency Pursuit”. When
acknowledged by radio, continue as follows:
1. Pursuit of vehicle
2. Route taken by fleeing vehicle
3. Description of vehicle and occupants
4. Pursuing Police vehicle shall give radio its location
periodically to assist other units in the apprehension.
c. Only the Police vehicle initiating the pursuit may use siren when
in visible pursuit of the fleeing vehicle.
d. If Police vehicle in pursuit has lost visible contact with the
fleeing vehicle, the operator shall notify radio of the last known
location and direction of travel. Police vehicle shall discontinue the
use of the siren and reduce speed.
e. If another Police vehicle resumes visible contact with fleeing
vehicle, operator shall notify radio and may take up pursuit using
lights and siren.
f. All pursuits shall be terminated when the violation leading to the
pursuit is of such minor nature as to make a high risk of a pursuit
unreasonable.
g. The Commanding Officer on shift will evaluate and may
terminate a pursuit at their discretion.
h. Police vehicles are not to be used as ROAD BLOCKS.
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J.A. at 686-87 (hereinafter “pursuit policy”). Pursuits are further governed by the
Pennsylvania Motor Vehicle Code. See 75 Pa. Cons. Stat. Ann. § 6342 (requiring every
police department to implement a written policy to govern motor vehicle pursuits).
Jewell filed a complaint against Ridley Township, Corporal Bongiorno, and
Officer Scanlan, asserting claims under 42 U.S.C. § 1983 and Pennsylvania tort law. The
District Court granted summary judgment for Ridley and the Officers, and Jewell
appealed.
III.
Analysis
A. The § 1983 Claims
Jewell argues that Ridley violated his constitutional rights by its “failure to have
an adequate policy in place governing police pursuits, its failure to properly train its
officers in the conduct of such pursuits, and its failure to properly supervise its officers
during such pursuits.” Appellant’s Br. at 22. The District Court granted summary
judgment for the Defendants by holding, inter alia, that Ridley’s pursuit policy was not
constitutionally inadequate and that Jewell failed to demonstrate that Ridley exhibited
deliberate indifference through its allegedly inadequate training and supervision.
1. Pursuit Policy
A municipality may only be held liable under § 1983 if the plaintiff identifies a
municipal “policy” or “custom” that was the “moving force” behind the injury. Monell v.
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Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978); see also Bd. of Comm'rs of Bryan Cnty. v.
Brown, 520 U.S. 397, 400 (1997).
Ridley’s pursuit policy does not precisely mirror the model policy suggested in the
Pennsylvania Motor Vehicle Code, but it was not the “moving force” behind Jewell’s
injuries. The pursuit policy provides that a pursuit “shall be terminated when the
violation leading to the pursuit is of such minor nature as to make a high risk of a pursuit
unreasonable” and that it is within the commanding officer’s discretion to terminate a
pursuit. J.A. at 687. The Officers both understood the pursuit policy to require a pursuit
to be terminated if it becomes unsafe. The pursuit policy was thus adequate to alert
officers to their duty not to engage in unreasonably dangerous pursuits. We agree with
the District Court that it was Smith who “was without question a danger to the
community,” and that “[t]his unfortunate accident was caused by a drunk driver, not by
an inadequate or deficient pursuit policy.” J.A. at 19.
2. Training
Jewell also argues that Ridley failed to adequately train its employees as to how to
conduct police pursuits. In City of Canton v. Harris, the Supreme Court held that “the
inadequacy of police training may serve as the basis for § 1983 liability only where the
failure to train amounts to deliberate indifference to the rights of persons with whom the
police come into contact.” 489 U.S. 378, 388-89 (1989) (“Only where a failure to train
reflects a ‘deliberate’ or ‘conscious’ choice by a municipality-a ‘policy’ as defined by our
prior cases-can a city be liable for such a failure under § 1983.”). The Supreme Court has
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also noted that “[a] pattern of similar constitutional violations by untrained employees is
‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to
train.” Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011) (citation omitted).
Although the Officers did not remember the details of the training they received
about pursuits, both Officers were generally familiar with Ridley’s pursuit policy. The
Ridley Police had assisted pursuits in neighboring towns, but had not been the lead car in
a pursuit for at least four years. Without a pattern of constitutional violations during
police pursuits involving the Ridley police, we cannot conclude that Ridley exhibited
deliberate indifference in its efforts to train its officers when it provided enough training
for its officers to be generally familiar with the pursuit policy. Cf. id at 1363 (“[S]howing
merely that additional training would have been helpful in making difficult decisions
does not establish municipal liability.”). We therefore agree with the District Court’s
holding that Ridley’s training on police pursuits does not reflect deliberate indifference to
the rights of persons with whom the officers come into contact, and that Jewell’s failure-
to-train claim fails.
3. Supervision
Jewell argues that Ridley is liable under § 1983 for its failure to supervise its
police officers during pursuits. A municipality may be liable for its failure to supervise
only if it reflects a policy of deliberate indifference to constitutional rights. See
Montgomery v. De Simone, 159 F.3d 120, 126-27 (3d Cir. 1998).
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Corporal Bongiorno—the supervisor in this pursuit—testified that he “will not do
anything that’s going to put someone in direct risk” unless that person is “in a position
that [he is] going to be able to hurt someone” because “those people have to be stopped.”
J.A. at 153. Corporal Bongiorno’s statements demonstrate his concern for the safety of
the community at large, and that he knows to terminate a pursuit if it becomes too
dangerous. We thus agree with the District Court’s holding that Corporal Bongiorno did
not act with deliberate indifference, and that Jewell’s failure to supervise claim fails.
B. The Negligence Claims
Jewell’s remaining claims arise under Pennsylvania state law. Jewell argues that
the Officers were negligent in the manner in which they carried out the pursuit while
acting within the scope of their employment, and that the Officers and Ridley are
therefore liable under the Pennsylvania Political Subdivision Tort Claims Act and state
tort law. The District Court held, inter alia, that Jewell failed to demonstrate that the
Officers pursued Smith without due regard for the safety of others, and therefore granted
summary judgment for the Defendants.
The necessary elements for a negligence claim under Pennsylvania law are “a duty
or obligation recognized by the law, requiring the actor to conform to a certain standard
of conduct; a failure to conform to the standard required; a causal connection between the
conduct and the resulting injury; and the actual loss or damage resulting to the interest of
another.” Matthews v. Konieczny, 527 A.2d 508, 511-12 (1987) (internal quotation
marks and citation omitted). Under the Pennsylvania Political Subdivision Tort Claims
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Act, local agencies are generally not liable “for any damages on account of any injury to
a person or property caused by any act of the local agency or an employee thereof or any
other person,” but an exception to this immunity exists for damages arising from “[t]he
operation of any motor vehicle in the possession or control of the local agency” and
caused by “the negligent acts of the local agency or an employee thereof acting within the
scope of his office or duties.” 42 Pa. Cons. Stat. Ann. §§ 8541 & 8542(a)-(b). Therefore,
all of Jewell’s state law claims require proof that the Officers were negligent.
Police officers are granted certain privileges under Pennsylvania law “when in the
pursuit of an actual or suspected violator of the law,” which allow the officers to
“[p]roceed past a red signal indication or stop sign . . . after slowing down as may be
necessary for safe operation,” to “[e]xceed the maximum speed limits so long as the
driver does not endanger life or property,” and to “[d]isregard regulations governing
direction of movement, overtaking vehicles or turning in specified directions.” 75 Pa.
Cons. Stat. Ann. § 3105(a)-(b). These privileges only apply when the vehicle’s audible
and visual signals are in use, see id. § 3105(c), and they do not relieve the driver of “the
duty to drive with due regard for the safety of all persons.” Id. § 3105(e).
Here, the lights and sirens of Corporal Bongiorno’s car were activated during the
pursuit, and the speed of the pursuit did not exceed thirty-five miles per hour until the
final moments when Smith suddenly accelerated. The Officers had reason to believe it
would be dangerous for Smith to continue driving because they suspected he was drunk
and had personally observed his erratic driving. Considering all of the evidence in the
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light most favorable to Jewell, we conclude that the pursuit was conducted in conformity
with the Officers’ duty to drive with due regard for the safety of all persons.
Accordingly, the Officers were not negligent during the pursuit, and Jewell’s state law
claims fail as a matter of law.
IV.
Conclusion
For the foregoing reasons, we affirm the District Court’s grant of summary
judgment for the Defendants.
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