CIVIL RIGHTS-IMMUNITY-QUALIFIED IMMUNITY

Rush v. City of Philadelphia, 2023 U.S. App. LEXIS 22926, 2023 WL 5600970 (3d Cir. August 30, 2023) (Restrepo, C.J.) As a reviewing court, we must often avoid the temptation to delve into factual inquiries that are beyond our ken. Our jurisdictional rules require us to exercise such restraint in reviewing this interlocutory appeal, taken from the denial of qualified immunity to a Philadelphia Police officer who fatally shot an unarmed driver suspected of criminal activity in August 2018. During execution of a warrant, six plainclothes officers in unmarked police cars surrounded Mr. Jeffrey Dennis’s vehicle at an intersection in West Philadelphia. Over the course of 48 seconds, Mr. Dennis attempted to free his car, bumping into the surrounding police vehicles. At one point, Mr. Dennis’s car appeared to have stopped moving, and Officer Richard Nicoletti shot Mr. Dennis three times through the driver’s side window. Mr. Dennis died at the scene. Although the incident was captured on video by a security camera, the District Court on summary judgment found open questions of fact as to Mr. Dennis’s estate’s excessive force claims against the City of Philadelphia (the “City”) and Officer Nicoletti; most notably, regarding whether Mr. Dennis posed a threat to the officers or public safety. The Court viewed the facts in the light most favorable to Mr. Dennis and denied Officer Nicoletti qualified immunity. It held that officer conduct including “sho[oting] at an unarmed driver attempting to escape at slow speed who had hit a car,” and/or “using deadly force against an individual driving a car” when “the driver did not pose a threat to the safety of the officer or others,” violated clearly established law. The thrust of Officer Nicoletti’s challenge to that determination is unmistakably factual, premised on a disagreement with the District Court’s ruling that a reasonable jury could conclude that Mr. Dennis posed no threat to officer or pedestrian safety. However, this is an interlocutory appeal of a denial of qualified immunity and our jurisdiction is constrained to the review of legal questions only. To the extent that any of Officer Nicoletti’s arguments could be construed to articulate a legal challenge to the District Court’s holding that his conduct violated clearly established law, we will affirm that holding.