Case 2:12-cv-04029-TJS Document 46 Filed 06/11/13 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CARNELL WILLIAMS-CARNEY : : v. : : CITY OF PHILADELPHIA, RYAN POWNALL, : MICHAEL CHICHEARO and ERNEST : POWELL : CIVIL ACTION NO. 12-4029 ORDER AND NOW, this 11th day of June, 2013, upon consideration of the Defendants’ Motion for Summary Judgment (Document No. 23) and the plaintiff’s response, it is ORDERED that the motion is DENIED.1 /s/Timothy J. Savage TIMOTHY J. SAVAGE, J. 1 Although the defendants argue that it is undisputed that the bullet that struck the plaintiff was fired by defendant Ryan Pownall, it is actually a fact question. All three police officer defendants fired shots at the plaintiff. In discovery responses, the defendants disclaim ed knowing whose bullet struck the plaintiff. Now, for the first tim e in this litigation, they claim it was Pownall who fired the shot that crippled the plaintiff. Given the discrepancy in the versions, the jury m ust determ ine, if it can, who fired the bullet that struck the plaintiff. The defendants’ qualified im m unity argum ent rests upon their claim that they had probable cause to believe that the plaintiff felony suspect posed a threat. However, there is a factual question as to whether the defendants knew or reasonably believed that the plaintiff had a gun on his person. The defendants’ rendition of the facts is subject to a credibility test. In other words, the jury m ust determ ine whether the plaintiff’s conduct and what the defendants believed he was doing placed them in im m ediate danger. W hether the defendant officers acted willfully is a question for the jury. There is am ple evidence upon which the jury could conclude that they did act willfully. Therefore, if the jury finds willful m isconduct, it m ay find liability under the Pennsylvania Political Subdivision Tort Claim s Act, 42 Pa. C.S.A. Tort Claim s Act, 42 Pa. C.S.A. § 8541 et seq. Given the 2005 report prepared by Ellen Ceisler in which she detailed the need for a foot pursuit policy and the City’s failure to im plem ent one since 2005, the jury could find deliberate indifference to the problem cited in the report.