Angel Perez, Jr v. BOROUGH OF JOHNSONBURG; DAVID CUNEO David Cuneo

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2559
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ANGEL PEREZ, JR.
v.
BOROUGH OF JOHNSONBURG; DAVID CUNEO
David Cuneo,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 1-18-cv-00180)
Magistrate Judge: Honorable Richard A. Lanzillo
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Argued April 18, 2023
Before: HARDIMAN, PORTER, and FISHER, Circuit
Judges
(Filed: July 21, 2023)

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Patrick M. Carey
Marshall Dennehey Warner Coleman & Goggin
717 State Street
Suite 701
Erie, PA 16501
Carol A. VanderWoude [Argued]
Marshall Dennehey Warner Coleman & Goggin
2000 Market Street
Suite 2300
Philadelphia, PA 19103
Counsel for Appellant
Benjamin M. Kelly [Argued]
Joshua S. Licata
Chad Shannon
Friday & Cox
1405 McFarland Road
Pittsburgh, PA 15216
Counsel for Appellee
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Police officer David Cuneo appeals an order of the
District Court denying in part his motion for summary
judgment. As relevant here, the District Court held that Cuneo
was not entitled to qualified immunity on Angel Perez’s claim

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for an unlawful seizure. Cuneo challenges that decision and we
agree with him. So we will reverse that part of the District
Court’s order.
I
A
On the evening of November 20, 2017, Cuneo was the
only officer on duty in the Borough of Johnsonburg,
Pennsylvania. He began by checking the activities log that
informs officers of developments since their last shift. The log
showed that nearby St. Marys Police Department had notified
Johnsonburg Police of a search warrant to obtain a DNA
sample from Angel Perez. Cuneo knew Perez, a local with a
history of illegal drug use who had recently sought Cuneo’s
advice about mental health and related issues. The log entry
instructed officers who saw Perez to “hold” him and call St.
Marys. App. 309.
From that log entry and a separate call with St. Marys,
Cuneo knew that Perez was a suspect in the recent burglary of
a drug house. Cuneo also knew that Perez’s DNA had been
found at the crime scene and that St. Marys wanted a DNA
sample for confirmation. Cuneo inferred—mistakenly, it
turned out—that a “body” warrant, not just a DNA warrant,
also had issued for Perez. App. 241.
Around midnight, while sitting in his cruiser in a
parking lot, Cuneo spotted Perez walking down the street.
Cuneo pulled into the street, drove in the direction Perez was
walking, and entered a parking lot on Perez’s side of the road.
He waited there as Perez, who recognized the car’s
Johnsonburg Police markings, approached. Cuneo got out and

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greeted Perez, who reciprocated. The men stood on the
sidewalk near the car, having at first what Cuneo dubs “minor
chit chat” and Perez calls a “friendly conversation.” App. 75,
121. All agree this exchange was nonconfrontational.
Things changed when Cuneo mentioned the DNA
warrant and told Perez he needed to take him into custody.
Perez denied any involvement in the burglary, objected that St.
Marys already had his DNA, and said he was going home. He
then turned and crossed the street—Cuneo says Perez “sprint
r[a]n” while Perez said that he “jog[ged]” or “jotted.” App.
197, 244. Cuneo pursued Perez.
The parties disagree about what happened next. Perez
says he was tased from behind without warning. Cuneo says he
warned Perez to stop before tasing him. Once tased, Perez fell
forward to the ground, breaking his nose. Cuneo radioed for
backup and emergency medical assistance. Perez recovered,
and a physical altercation between the two men ensued. Cuneo
repeatedly tased and struck Perez with his baton. The
altercation ended when Cuneo shot Perez in the back.
B
Perez sued Cuneo and the Borough of Johnsonburg
under 42 U.S.C. § 1983. He first brought Fourth and
Fourteenth Amendment claims, but later conceded that the
latter should be dismissed. The District Court construed his
complaint to include Fourth Amendment claims alleging
unreasonable seizure and excessive force.
The parties agreed to have a Magistrate Judge decide
their case consistent with Rule 73 of the Federal Rules of Civil
Procedure. Following discovery, Defendants moved for

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summary judgment. Cuneo asserted qualified immunity in
defense. The District Court, after oral argument, granted the
motion in part and denied it in part. It granted judgment to the
Borough on all claims, and granted judgment to Cuneo on the
excessive force claim for his use of his taser and baton during
the altercation with Perez. The Court denied Cuneo’s motion
as to his liability on the excessive force claim for the use of his
firearm during the altercation. And it denied Cuneo’s motion
on the unlawful seizure claim, which led to this timely appeal.
II
Our review is de novo. Montanez v. Thompson, 603
F.3d 243, 248 (3d Cir. 2010) (jurisdiction and summary
judgment); Karns v. Shanahan, 879 F.3d 504, 512 (3d Cir.
2018) (legal grounds underpinning qualified immunity).
Summary judgment is proper when there is no genuine dispute
of material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a).
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1343. The Magistrate Judge had jurisdiction under
28 U.S.C. § 636(c)(1). Cuneo claims we have jurisdiction
under 28 U.S.C. § 1291, but Perez contests that point. So we
turn first to that jurisdictional dispute.
A
Cuneo insists that his appeal is “narrow.” Cuneo Br. 5.
On his view, the appeal concerns only his “initial stop and
interactions” with Perez—the conversation up until Perez
turned away and crossed the street—and not the “physical
altercation” that followed. Id. Cuneo claims matters beyond the
“initial stop and interactions” are “irrelevant” to the appeal. Id.

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Cuneo’s attorney confirmed this understanding at oral
argument. See Oral Arg. at 1:42–1:56 (“We’re here with
respect to only one of the claims, and the issue here as to that
claim involves qualified immunity with respect to the initial
interactions between Officer Cuneo and Mr. Perez.”). Perez’s
brief focuses on the same timeframe. His “Summary of
Argument” and “Argument” sections mention nothing that
happened after Perez left the conversation. And Perez says he
was unlawfully seized when Cuneo first mentioned the DNA
warrant.
The District Court found that Cuneo’s initial attempt to
detain Perez, right “at the time Cuneo encountered” him, was
unlawful. App. 22. Based on the parties’ framing of the issue,
the District Court assumed that Cuneo’s initial encounter with
Perez was either a Terry stop or an arrest—a seizure either way.
United States v. Hester, 910 F.3d 78, 84 (3d Cir. 2018). So the
Court focused on whether the assumed seizure was justified.
B
We have jurisdiction to hear “all final decisions” not
directly appealable to the Supreme Court. 28 U.S.C. § 1291.
Typically, a decision or order is “final” when it concludes
litigation. Cunningham v. Hamilton Cnty., 527 U.S. 198, 204
(1999). But courts give § 1291 a “practical” construction,
permitting interlocutory appeal of non-final orders that have a
“final and irreparable effect” on the parties’ rights. Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 545–46 (1949).
These “collateral” orders are “conclusive,” resolve “important
questions separate from the merits,” and are “effectively
unreviewable on appeal from the final judgment.” Swint v.
Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995).

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Pretrial orders denying qualified immunity can meet
these conditions. Plumhoff v. Rickard, 572 U.S. 765, 771–72
(2014). But an order denying a defense of qualified immunity
is not collateral, or “final,” when that defense’s resolution
depends on disputed issues of material fact. Monteiro v. City of
Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006). There are no such
disputes here. Though the parties disagree how fast Perez
crossed the street and what happened once he did, those
disagreements are immaterial to the narrow initial-seizure issue
before us. Perez maintains that the qualified immunity analysis
requires “evaluating [Cuneo’s] credibility” as a witness. Perez
Br. 8. Not so. Qualified immunity involves an official’s
“objective legal reasonableness,” not his credibility. Anderson
v. Creighton, 483 U.S. 635, 639 (1987) (cleaned up). And the
District Court rejected qualified immunity for the unlawful
seizure claim on a legal, not factual, ground.
Because no factual dispute precludes interlocutory
appeal of the order denying summary judgment to Cuneo for
qualified immunity on the unlawful seizure claim, we exercise
jurisdiction and proceed to the merits.
III
The parties dispute the lawfulness of the alleged seizure
comprising the initial stop and interactions between Cuneo and
Perez. As we shall explain, no seizure occurred at that time.
Fourth Amendment doctrine contemplates three
categories of interaction between officers like Cuneo and
citizens like Perez. First, exchanges “involving no coercion or
detention.” United States v. Brown, 765 F.3d 278, 288 (3d Cir.
2014). Second, “brief seizures or investigatory detentions.” Id.
Third, “full-scale arrests.” Id. The first category is not a

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“seizure” at all, so it doesn’t implicate the Fourth Amendment.
The second requires a showing that the officer acted with
reasonable suspicion. Id. The third demands proof of probable
cause. Id.
It is clear, and the parties agree, that nothing in the
interaction before Cuneo’s first mention of the DNA warrant
involved coercion or detention. So the initial “chit chat,” App.
75, doesn’t implicate the Fourth Amendment, and we consider
only the sequence from when Cuneo invoked the DNA warrant
to when Perez turned and left.
Though Cuneo intended to arrest Perez, he failed to do
so, and the initial sequence did not involve a seizure. A seizure
occurs when an officer, “by means of physical force or show
of authority,” restrains the citizen’s liberty. Brown, 765 F.3d at
288 (cleaned up). Perez does not argue that Cuneo touched or
otherwise applied physical force to him while they spoke.
Perez, then, was seized only if he “submi[tted] to” Cuneo’s
“assertion of authority.” California v. Hodari D., 499 U.S. 621,
626 (1991) (cleaned up). Yet he did not submit. By promptly
disengaging from the conversation and “jog[ging]” across the
street, App. 197, Perez refused to abide Cuneo’s command. See
United States v. Lowe, 791 F.3d 424, 433 (3d Cir. 2015). He
exemplified the “most obvious example” of a refusal to submit:
“when a suspect runs.” Id. It matters not whether Perez was
sprinting or jogging: “headlong flight” isn’t required if a
would-be detainee “takes action to evade” the officer—as
Perez did. Id. We therefore hold that Cuneo’s show of authority
during the initial stop and interactions was merely an attempted
seizure, which does not implicate the Fourth Amendment.
Brendlin v. California, 551 U.S. 249, 254 (2007).

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* * *
Officer Cuneo did not seize Perez during their initial
encounter. So the District Court erred in denying Cuneo
qualified immunity as to the unlawful seizure claim. We will
reverse the order in that regard and remand the matter so
Perez’s excessive force claim for Cuneo’s use of his firearm
can proceed consistent with this opinion.

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