Perez v. Borough of Johnsonburg, No. 21-2559 (3d Cir. 2023)
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Johnsonburg, Pennsylvania Officer Cuneo learned that the St. Marys Police Department had a search warrant to obtain a DNA sample from Perez. Cuneo knew Perez, a local with a history of illegal drug use. A log entry instructed officers who saw Perez to “hold” him and call St. Marys. Cuneo knew that Perez’s DNA had been found at the scene of a recent drug house burglary. Cuneo inferred—mistakenly—that a “body” warrant also had been issued. Later, sitting in his cruiser, Cuneo spotted Perez. The men stood on the sidewalk, having a “friendly conversation.” When Cuneo mentioned the DNA warrant and told Perez he needed to take him into custody. Perez said he was going home and sprinted away.
Cuneo pursued Perez. Perez says he was tased from behind without warning. Cuneo says he warned Perez to stop before tasing him. Perez fell forward, breaking his nose. Cuneo radioed for backup and medical assistance. Perez recovered; a physical altercation ensued. Cuneo repeatedly tased and struck Perez with his baton, then shot Perez in the back.
In a suit under 42 U.S.C. 1983, Cuneo asserted qualified immunity in defense. The court denied Cuneo’s summary judgment motion as to his use of his firearm and the unlawful seizure claim. The Third Circuit reversed in part. Cuneo did not seize Perez during their initial encounter. The court remanded so Perez’s excessive force claim for Cuneo’s use of his firearm can proceed.
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