When the use of excessive force means that a police officer has acted beyond their scope of employment—and the protection of sovereign immunity—should be a question for jurors to answer, the lawyer for a plaintiff who claimed she suffered an injury during a traffic stop argued Thursday to the Pennsylvania Supreme Court.

A lawyer from the state Attorney General's Office said, however, that in the vast majority of cases a judge must decide as a matter of law whether an officer has acted outside their scope of employment.

The justices heard argument in Harrisburg in Justice v. Lombardo, a case stemming from a 2013 traffic stop in Philadelphia that ended with Shiretta Justice suffering a sprain while being handcuffed. The arrest took place after the traffic stop had concluded, but the officer, trooper Joseph Lombardo, contended that he cuffed Justice for her safety, since she was close to Interstate 76.

Justice's attorney, Thomas Fitzpatrick of Mincey & Fitzpatrick, told the court that video showing Lombardo “inexplicably” jumped a jersey barrier with handcuffs ready, the fact Justice's car had already been towed and evidence that he called Justice an “animal” after the incident all showed that Lombardo was acting in out of animus, rather than in the interest of his job duties.

“It's the jury's place to view this,” Fitzpatrick said. “He was acting in an outrageous manner.”

Justice Debra Todd, however, asked Fitzpatrick what would happen if Lombardo drove away and then Justice had been injured by a car.

“There's a catch-22 for the police officer,” she said. “That's what I'm struggling with.”

Fitzpatrick agreed that there are competing facts and interests, but those issues, he said, “are the province of the jury.”

The Commonwealth Court, however, unanimously ruled in November 2017 that sovereign immunity made the details of the incident irrelevant. The court ruled that, because Lombardo was acting in the scope of his employment, he was protected by sovereign immunity, and so the trial court erred in denying the officer's motion for judgment notwithstanding the verdict in Justice's civil suit against him.

“Whether his conduct was reasonable or not, intentional or not, tortious or not, carried out for an improper motive or not, are all irrelevant because Trooper Lombardo's use of force in placing Ms. Justice's hands behind her back and 'wrestling' with her to apply handcuffs was of the same general nature as that authorized or incidental to the conduct authorized, and use of force, in general, by state troopers is not unexpected,” Senior Judge Dan Pellegrini wrote for the court.

Claudia Tesoro of the Attorney General's Office argued the case for Lombardo. She told the court there were circumstances when an officer would not be acting within the scope of his employment, but only in the most severe of circumstances, she said, giving the example of an officer shooting a jaywalker.

Tesoro disputed Fitzpatrick's characterization of the stop, but the justices focused on the fact that a jury had already reviewed the case, questioning Tesoro about whether a judge or a court should be able to dismiss a case at the judgment not withstanding the verdict stage.

“We're not a jury. I appreciate there are two sides of the story, but there are not two sides of the story for us,” Justice Max Baer said.

Justice David Wecht also questioned Tesoro about whether the distinction between an officer acting in the scope of his employment, and using excessive force was “a matter of degree.” He said his reading of the Commonwealth Court's opinion indicated Lombardo could have shot Justice and the court still would have determined that he had been acting in the course of his employment.

Tesoro, however, contended that there were certain undisputed facts in the case that would have allowed a judge to determine Lombardo was acting in the scope of his employment, and therefore entitled to immunity.

“There are key details that were not something the jury had to figure out,” Tesoro said.