Eric Deshawn Gulley v. Elizabeth City Police Department

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 06-5150, 06-5183, 06-5202
07-1037, 07-1124
ERIC DESHAWN GULLEY
v.
ELIZABETH CITY POLICE DEPARTMENT,
and the employees;
DAVID TURNER, Off.; KENNETH MCNAB, Off.;
IDROVO, Off.; DONATO DEMARCO, Off.;
JAMES KEARNS, Sgt.; MARCOS DIAZ, Off.;
VICTOR MATOS, Off.; STIENKE, Off.;
BELTRAN, Off.; SALVERO, Off.;
DECKER, Off.; CAMRINAH, Off.;
FAZIO, Off.; NIEWINSKI, Off.;
MCCUE, Sgt.
Victor Matos,
Appellant in No. 06-5150
Donato Demarco,
Appellant in No. 06-5183
Marcos Diaz,
Appellant in No. 06-5202
Richard Steinke,
Appellant in Nos. 07-1037, 07-1124
On Appeal from the United States District Court

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*The Honorable Jan E. DuBois, Senior District Judge for the United States District
Court for Eastern District of Pennsylvania, sitting by designation.
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for the District of New Jersey
District Court No. 04-cv-04445
District Judge: The Honorable Jose L. Linares
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 26, 2009
Before: BARRY, SMITH, Circuit Judges
and DuBOIS, District Judge *
(Filed: July 27, 2009)
OPINION
SMITH, Circuit Judge.
Numerous officers of the Elizabeth City Police Department responded on May 7,
2003, at 3:30 A.M., to a report of an armed carjacking and the kidnapping of one of the
vehicle’s passengers. A vehicular chase ensued, which ended when the perpetrator, Eric
Gulley, crashed into a cement wall. A foot chase followed into a nearby wooded area.
Gulley attempted to hide by lying down in a ditch and covering himself with dirt. Officer
Demarco, however, spotted him and called for back-up. Officers Matos, Diaz, and
Steinke arrived at the scene. What then transpired is the subject of divergent accounts.
The Officers affirmed that Gulley and Demarco were struggling when they arrived on the
scene, that Gulley hit Officer Demarco’s face and neck, and that Gulley refused to obey

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1The District Court exercised jurisdiction under 28 U.S.C. §§ 1331 and 1343.
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verbal commands. Gulley, however, explained during his deposition that he “just laid” in
the ditch once Officer Demarco spotted him and that the other “three officers jumped on
my back and started beating me on my face and my head.” He testified that when one of
the officers “was trying to handcuff me. I gave him my right hand. Once I gave him my
right hand, I started getting hit upside the head some more.” Gulley denied offering any
resistance once he was apprehended. Eventually, Gulley was handcuffed and arrested.
Gulley pleaded guilty to certain state criminal offenses.
While imprisoned, Gulley filed a civil action alleging that the Elizabeth City
Police Department and certain of its officers who responded to the scene violated his
constitutional rights.1 Although the United States District Court for the District of New
Jersey granted summary judgment in favor of the Elizabeth City Police Department and
several of its officers, the Court denied the motion for summary judgment on the
excessive force claims against Officers Matos, DeMarco, Diaz, and Steinke (hereinafter
the Officers). The Court reasoned that, if Gulley’s account was correct, the Officers were
not entitled to qualified immunity as it was clearly established that the “beating an
unarmed suspect, multiple times on the face and head while he is lying down and not
resisting arrest constitutes excessive force.” These appeals followed.
The Officers contend that appellate jurisdiction exists because the denial of their
claim for qualified immunity is appealable under the collateral order doctrine. According

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to the Officers, the District Court erred by denying their claim of qualified immunity
because: (1) it improperly relied on the allegations of Gulley’s complaint and an unsworn
police report in concluding that there was evidence to establish Gulley’s claim of
excessive force against the Officers; and (2) it failed to properly analyze their qualified
immunity claim.
In Ziccardi v. City of Philadelphia, 288 F.3d 57 (3d Cir. 2002), we acknowledged
that the collateral order doctrine allows us, under certain circumstances, to entertain an
appeal from an order denying a claim of qualified immunity. Id. at 61 (citing Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985)). We explained that “we lack jurisdiction to consider
whether the district court correctly identified the set of facts that the summary judgment
record is sufficient to prove; but we possess jurisdiction to review whether the set of facts
identified by the district court is sufficient to establish a violation of a clearly established
constitutional right.” Id. In other words, we have jurisdiction under the collateral order
doctrine to consider an appeal from the denial of qualified immunity that raises pure
questions of law, but jurisdiction is lacking if the appeal “challenges the District Court’s
determination of which facts were sufficiently supported by evidence.” Blaylock v. City
of Philadelphia, 504 F.3d 405, 409 (3d Cir. 2007).
Consistent with Ziccardi and Blaylock, we conclude that we lack jurisdiction to
consider whether the record for summary judgment purposes supports the set of facts
identified by the District Court. We do, however, have jurisdiction to consider whether
this set of facts, if proven at trial, would constitute a violation of a clearly established

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2We note that our affirmance of the District Court’s judgment does not mean that
Gulley has prevailed on his claim of excessive force. We agree with the District Court
that Gulley will have to clear a significant hurdle at trial to prevail on his claim in light of
the fact that his injuries could be attributed to his collision with the concrete wall and his
fall to the ground from the fence as he was fleeing. Although his injuries were minor, the
District Court did not err by refusing to dismiss Gulley’s claims based on the minor
nature of his injuries. As we explained in Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.
1997), the absence of physical injury does not necessarily signify that the force has not
been excessive. Rather, it is simply one of the circumstances to be considered under the
objective reasonableness standard set forth in Graham v. Connor, 490 U.S. 386, 397
(1989).
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constitutional right. After consideration of the facts identified by the District Court, we
conclude that the District Court did not err in its determination that beating a suspect on
the face and head, who is lying down and not resisting arrest, would constitute excessive
force in violation of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394-397
(1989); Sharrar v. Felsing,128 F.3d 810, 822 (3d Cir. 1997). Accordingly, we will affirm
the order of the District Court denying the Officers’ claim for qualified immunity.2

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