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McCurdy v. Dodd

December 17, 2003

BOBBY MCCURDY, APPELLANT,
v.
KIRK DODD, BADGE NO. 1762 INDIVIDUALLY AND AS A POLICE OFFICER FOR THE PHILADELPHIA POLICE DEPARTMENT; CHRISTOPHER DIPASQUALE, BADGE NO. 4971 INDIVIDUALLY AND AS A POLICE OFFICER FOR THE PHILADELPHIA POLICE DEPARTMENT; JOHN MOUZON, BADGE NO. 5293 INDIVIDUALLY AND AS A POLICE OFFICER FOR THE PHILADELPHIA POLICE DEPARTMENT; DAVE THOMAS, BADGE NO. 1762 INDIVIDUALLY AND AS A POLICE OFFICER FOR THE PHILADELPHIA POLICE DEPARTMENT; SCOTT WALLACE, BADGE NO. 3434 INDIVIDUALLY AND AS A POLICE OFFICER FOR THE PHILADELPHIA POLICE DEPARTMENT; CITY OF PHILADELPHIA, APPELLEES. CITY OF HARRISBURG; CITY OF PITTSBURGH; CITY OF NEWARK; CITY OF CAMDEN, AMICI-APPELLEES



On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court Judge: The Honorable Clifford Scott Green (99-CV-5742)

Before: Alito, Fuentes, and Becker, Circuit Judges

The opinion of the court was delivered by: Fuentes, Circuit Judge

PRECEDENTIAL

Argued on July 23, 2003

OPINION OF THE COURT

This controversy arises out of the tragic and fatal shooting of Donta Dawson ("Dawson" or the "decedent") in an encounter with officers of the Philadelphia Police Department. Dawson's biological father, Bobby McCurdy ("McCurdy"), appeals the grant of summary judgment in favor of the defendants as to McCurdy's sole remaining claim from an action brought pursuant to 42 U.S.C. § 1983. McCurdy invoked the Due Process Clause of the Fourteenth Amendment and asserted that defendants had violated his parental liberty interest in the companionship of his independent adult son.

The District Court granted summary judgment on the ground that McCurdy was precluded from bringing his § 1983 action after he had entered into an agreement with Dawson's mother to share the proceeds from her settlement of a prior civil action against the same defendants here. We find, however, that there is a controlling, threshold issue which obviates the need to address preclusion: that is, whether McCurdy has adequately asserted the violation of a cognizable constitutional right. Because the Due Process Clause does not protect the interest of a parent in the companionship of his or her independent adult child, we will affirm the judgment of the District Court.

I.

A.

On the night of October 1, 1998, Donta Dawson was sitting alone in a parked car, with the engine running, on 12th Street near Glenwood Avenue in Philadelphia. The headlights and interior lights were on, and the radio was audible. Philadelphia Police officers Kirk Dodd and Christopher DiPasquale spotted Dawson's vehicle and pulled up alongside it. Officer Dodd inquired why Dawson was parked on the street and whether he needed any assistance. According to the officers, Dawson looked at them and then looked away without responding.

Officer Dodd exited the patrol car and approached Dawson on the driver's side of the car. He asked Dawson again whether he needed help. Dawson looked at Officer Dodd, shrugged his shoulders, and turned away. The encounter rapidly escalated from there. The officers demanded that Dawson raise his hands, at times yelling obscenities to emphasize their point. Dawson did not respond. Officer DiPasquale drew his weapon and positioned himself by the hood of the patrol car.

While holding down Dawson's left arm, officer Dodd reached in and removed the key from the ignition. He then drew his weapon and pointed it directly at Dawson. Repeated demands to show his hands were met with Dawson's silence. Officer Dodd then attempted to pull Dawson's left arm up without success. As he retreated, he told officer DiPasquale that Dawson had a gun.

After further demands that he raise his hands, Dawson finally began to move his left arm. Officer DiPasquale then fired his weapon, fatally shooting Dawson in the head. A subsequent investigation revealed that Dawson was unarmed.

Although the familial relationships between the decedent and his parents are important to this case, the factual record is disturbingly ...


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