“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Third Circuit judge Peter Phipps argued in dissent that the court should reverse a district court and grant qualified immunity to a police officer who was sued for using excessive force against a young black man, who was suspected of nothing more than underage purchase of tobacco products. The majority rejected Phipps’ view and affirmed the district court in its September 2020 decision in El v. City of Pittsburgh.

One summer evening in Pittsburgh, two young Black men who are brothers, Reyshaud and Will El, were walking out of a convenience store and were spotted by Lieutenant Reyne Kacsuta.  She saw that Reyshaud was holding a “green foil object”, suspected it was synthetic marijuana, and proceeded to approach and question the young men. They declined to talk to her when she drove up to them, so she followed them in her car and called for backup. Within minutes, Reyshaud and Will complied with Kacsuta’s request that they sit on the front stoop of a vacant store when two other officers, Frank Welling and Ryan Warnock, arrived. Two other officers arrived a few minutes later. By then it was clear that the brothers did not have synthetic marijuana or other drugs, but Kacsuta thought that they might have made an underage tobacco purchase. Will had identification showing that he was over 18 but Reyshaud did not have his id with him.

Reyshaud reached to pick up his brother’s id that Kacsuta had tossed on the ground but she stepped on it to prevent him from doing so and directed the brothers to remain. They complained they were being harassed and Will stood up and took “one or two small steps” toward Kacsuta. Neither brother had a weapon and video clearly revealed that Will was not threatening. Nevertheless, Welling proceeded to grab Will by the wrist and neck and “slammed him” into the storefront wall and onto the pavement.  Reyshaud stood up and stepped towards Welling and was immediately tased by Warnock. The brothers offered no resistance when they were handcuffed and arrested, and both had to go to the hospital for treatment for pain and contusions.

After minor disorderly conduct convictions, the brothers sued the three officers for excessive force in violation of the Fourth Amendment as well as for state law assault and battery claims. After discovery and other pretrial actions, the district court denied a motion for summary judgment on the remaining state law claims against Warnock and denied claims for qualified immunity by Kascuta and Welling. The officers appealed.

All three appellate judges agreed that they did not have jurisdiction over Warnock’s appeal and decided that Kacsuta should be granted immunity, since the only claim against her was that she did not intervene in the actions taken by the other two officers. In an opinion by Judge Michael Fisher, who was nominated by President George W. Bush, the majority affirmed the district court’s decision to deny immunity to Welling concerning the force he used against Will El. The majority agreed with the district court that a reasonable jury could find that Welling’s conduct was unreasonable, and that Will El had a clearly established constitutional right to be “free from the use of excessive force by police” when, “during an investigatory stop for a minor offense,” he stood up and took “one or two small steps” toward a police officer “in a non-threatening manner.”

Trump judge Phipps dissented and argued that the court should have found that immunity “shields Officer Welling from suit.” He claimed that El’s constitutional right was not defined specifically enough and should have incorporated other “facts” such as that Will allegedly pointed at an officer and did not sit back down when so directed. Phipps maintained that the cases relied on by the majority were “factually dissimilar” and from other circuits. And he asserted that it was not clear that Phipps’ use of force was excessive since the Els appeared violent or dangerous.

Judge Fisher explained what was wrong with Phipps’ arguments. He noted that the district court did not speak at a “high level of generality,” but instead defined the right “with specificity” in accord with precedent. Some of the “facts” mentioned by Phipps were in dispute at best, the majority went on, and the facts found by the district court must be accepted unless clearly contradicted by video evidence, which they were not. Judge Fisher specifically disagreed with Phipps’ claim that the cases he relied on were factually dissimilar, since all involved “unarmed individuals who were not suspected of a serious crime and were uncooperative or passively resistant.” And contrary to Phipps’ assertion, Fisher explained, the facts actually showed that the El brothers’ behavior “was not violent or dangerous, only indignant.” In short, Phipps was disagreeing with “black-letter law” (clearly established precedent) that made it unmistakable that Welling should not receive immunity.

If it had been the majority view, Phipps’ dissent would have undermined efforts to hold police accountable for violence and misconduct. Fortunately, it was rejected in this case, and Will El can proceed with his lawsuit.

Note: PFAW legal intern Oliver Telusma prepared the initial draft of this post.