Sharrar v. Felsing

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

10-24-1997

Sharrar v. Felsing

Precedential or Non-Precedential:

Docket

96-5375

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Filed October 24, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-5375

RONALD E. SHARRAR; GERARD A. SWEENEY;

DAVID L. BRIGDEN; KENNETH J. SHARRAR,

v.

DENNIS FELSING, SGT., Individually and as an officer of

the Sea Isle City Police Department; WILLIAM KENNEDY,

DETECTIVE SGT., Individually and as an officer of Sea

Isle City Police Department; ALBERT WILSON, LT.,

Individually and as an officer of the Sea Isle City Police

Department; MICHAEL LARKIN, SGT., Individually and

as an officer of the Sea Isle City Police Department;

CITY OF SEA ISLE

Ronald E. Sharrar, Gerard A. Sweeney,

David L. Brigden and Kenneth L. Sharrar,

Appellants

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 94-cv-01878)

Argued May 23, 1997

Before: SLOVITER, Chief Judge, ROTH, Circuit Judge and

POLLAK,* District Judge

(Filed October 24, 1997)

_________________________________________________________________

* Hon. Louis H. Pollak, United States District Court for the Eastern

District of Pennsylvania, sitting by designation.

Jane M. Shields (Argued)

Sherilyn M. Arnold

Siana, Shields & Vaughan

Exton, PA 19341

Attorneys for Appellants

Steve Drake (Argued)

Savio, Reynolds & Drake

Absecon, N.J. 08201

Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Chief Judge.

Ronald Sharrar, Kenneth Sharrar, David Brigden and

Gerard Sweeney brought this civil rights action pursuant to

42 U.S.C. S 1983 against police officers Lt. Albert Wilson,

Sgt. Michael Larkin, Sgt. William Kennedy, Sgt. Dennis

Felsing, and the City of Sea Isle, New Jersey, alleging

unlawful arrest, arrest with excessive force, and two illegal

searches. After the district court granted summary

judgment to the defendants on all claims except for the

second allegedly illegal search, a magistrate judge

conducted a jury trial on the remaining claim against Sgts.

Larkin and Kennedy. The jury found that the search was

conducted without a warrant but that Sgt. Kennedy had

not participated in the search and that Sgt. Larkin had a

reasonable belief that he had a warrant so was entitled to

qualified immunity.

The plaintiffs appeal the summary judgment order, the

denial of their Motion for Judgment as a Matter of Law, and

the submission of a special interrogatory to the jury with

respect to Sgt. Kennedy's role in the illegal search. Plaintiffs

do not appeal dismissal of their claims against the City.

On this appeal, we must consider plaintiffs' contentions

that the court erred in disposing of certain claims by

summary judgment and in its handling of the one claim

2

that reached the jury. We must also reach the issue of

qualified immunity, which had been sought by the

defendants although not fully addressed by the district

court.

I.

BACKGROUND

A.

Facts

As to those portions of this case that were decided by

summary judgment, we set forth the undisputed facts as

revealed by the record, which is comprised almost entirely

of deposition testimony, and the plaintiffs' version of the

facts when there are disparities. See In re City of

Philadelphia Litigation, 49 F.3d 945, 949 (3d Cir.), cert.

denied, 116 S. Ct. 176 (1995). We also refer to additional

facts adduced at the trial which was held on the claim

based on the second search.

On October 1, 1992 at approximately 12:10 p.m. Patricia

Gannon-Brigden (referred to here as Patricia Gannon)

called 911 and said "I had somebody come into my

apartment and beat me up. I'm bleeding pretty bad." App.

at 152. When the dispatcher asked who beat her up she

replied "Robert Carroll." The dispatcher asked for

clarification and Gannon repeated two more times that it

was Robert Carroll who beat her up. Id. The dispatcher

asked if he was still there and Gannon replied "No, he left.

And three other people were here with him. I'm bleeding. I

have blood all over me. There is blood everywhere." App. at

152-53. The dispatcher then told Sgt. Felsing, who was in

the room with the dispatcher, that "There is a woman beat

up by Robert Carroll." App. at 153. Sgt. Felsing's response

was inaudible and in deposition he testified that he never

heard the dispatcher mention the name Robert Carroll.

When Sgt. Felsing arrived at Gannon's apartment she

told him that she had been hit, and he saw a two-inch

3

laceration on her scalp, a pool of blood on the kitchen floor,

blood on a pillow in the bedroom and blood in her hair.

There were no signs of a forced entry or any broken objects

in the apartment. She told Sgt. Felsing "that her [estranged]

husband, David Brigden, and three others had come into

the house, that they held her while David pulled a gun and

hit her on the side of the head." App. at 250. She said that

Brigden was being investigated by the FBI for bringing

drugs into town, and that he told her that he was afraid

that she had gone to the FBI, and that "she wouldn't be the

first body he's thrown in the river and they haven't found.

He hit her and that's the last she remembered." App. at

255. Gannon did not identify or describe the other three

men to Sgt. Felsing.

An ambulance arrived soon after, as did Sgt. Larkin and

Capt. Kevin McClory. Sgt. Larkin stated that "Officer

Felsing indicated to me that [Gannon's] ex-husband entered

the condominium while two of her [sic] friends held her

down, he struck her with a handgun, and there was

another person involved, that he was standing by the door,

and he indicated that [Gannon] said that after they left,

they jumped into the brown van and they went back to

49th Street." App. at 297. Neither Sgt. Larkin or Capt.

McClory spoke with Gannon.

Gannon was taken to the hospital and was admitted at

approximately 1:09 p.m. About the same time, Sgt. Larkin

dispatched Sgt. Felsing to Brigden's home on 49th Street to

see whether the van was there. Sgt. Felsing radioed Sgt.

Larkin to tell him that the van was in front of Brigden's

residence and then parked his car on another street and

walked to the northwest corner of 49th Street and waited.

Sometime thereafter, while Sgt. Felsing was at the property,

Kim Candle, a resident of one of the units in the building,

came out and Sgt. Felsing asked her if Brigden was in the

house. She responded that she had heard noise downstairs

"so she knew they were there." App. at 263.

Sgt. Larkin also proceeded to Brigden's residence and

radioed the license number of the van to the dispatcher,

who confirmed that it was Brigden's van. At approximately

1:30 p.m. Capt. McClory arrived and Sgt. Larkin suggested

that they seek reinforcements. Capt. McClory agreed and

4

Sgt. Larkin called the dispatcher and told him to call Lt.

Wilson, "who was in charge of the tactical unit," and off-

duty officers. App. at 298. It took approximately a half hour

to forty-five minutes for all the reinforcement officers to

arrive.

A "temporary command post" was set up at the 49th

Street corner where the officers assembled in a variety of

police vehicles. App. at 345. City of Sea Isle Mayor Michael

McHale arrived, as did Police Commissioner Libro. FBI

agent Jack Reemer was called to the scene as a trained

hostage negotiator. Two officers from the Sheriff 's

Department arrived. Additional officers from the Avalon and

Ocean City Police Departments arrived, as did several

officers with drug/explosives sniffing dogs. Lt. Wilson, the

officer in charge of the SWAT team, arrived with the entire

eight member SWAT team, who were dressed in black

fatigue uniforms and armed with shotguns, rifles and

submachine guns. App. at 405-06.

The police created an inner and outer perimeter around

Brigden's residence. Capt. McClory ordered the evacuation

of all residents in the inner perimeter. He dispatched

someone to contact the schools in the area to divert their

normal bus routes and keep at school all children who lived

in the immediate vicinity of Brigden's residence. App. at

310. The fire station was ordered to accept evacuees, app.

at 145; fire trucks and ambulances were told to come to the

scene without lights and sirens; the City marina was closed

so that no boats could leave the harbor; and the bridge

which provided the sole vehicular access to the City was

blocked.

Once the inner perimeter was cleared, Lt. Wilson

assigned duties to members of the tactical team. Officer

Rock, who was "the department sniper," and another officer

were stationed at a nearby building. App. at 350. Sgt.

Larkin, Lt. Wilson and at least three other officers were

assigned to the rear of the residence. Sgt. Kennedy was

sent to the front of the residence in order to watch the front

door. Lt. Wilson then told Sgt. Felsing to go to a nearby

house and call Brigden. Sgt. Felsing was accompanied by

the FBI hostage negotiator.

5

Sometime between 2:30 and 3:20 in the afternoon,

Gerard Sweeney, who along with Ronald and Kenneth

Sharrar was staying with Brigden for a few days, looked out

a sliding glass door and saw an armed man in black

fatigues in the backyard. Frightened, he yelled "David, call

the police." App. at 121. Brigden stated that "I looked out

the back window and there was a fellow there kneeling,

dressed in black with a shotgun pointed at the house. And

I then went to the side window and looked out the side

window and saw a man there with a machine gun. . . ."

App. at 129.

When Brigden picked up the phone to call the police, Sgt.

Felsing was already on the line. Sgt. Felsing identified

himself, told Brigden that the house was surrounded by

police, that they had reason to believe he had committed an

assault, and wanted him to "send his people out" one by

one backwards out the back door and then for him to come

out. App. at 262. Brigden stated that while he was on the

phone he could hear men screaming for them to come out

backward with their hands on their heads.

The four men complied and walked out backwards one at

a time into the backyard and were ordered to lie face down

in the dirt. They allege that the police yelled and

"threatened to blow our brains out if we made one wrong

move." App. at 114. Sweeney stated that the police yelled:

"You move, I will blow your . . . fucking heads off." App. at

122. Kenneth Sharrar stated that once on the ground the

police "came up and were yelling, where's the fucking gun.

Stuck a gun in the back of my head, put their knee in my

back." App. at 115. Ronald Sharrar claimed the police

yelled at him to "[k]eep your fucking head down or I'll blow

it the fuck off," and repeated that threat three to five times.

App. at 105.

By 3:20 p.m. the four men were handcuffed, frisked, and

taken to the police station. According to Lt. Wilson, once

the four were taken into custody "[t]he tactical unit

immediately entered the building and cleared it to make

sure there were no other suspects still hiding inside." App.

at 429.

Brigden's residence consisted of a three story single-

family house that had been converted into four separate

6

locked and numbered apartment units. The first floor

contained two apartments, one of which was occupied by

Brigden. There were separate apartments on the second

and third floors. The officers admitted that they knew that

the other units were rented to other people.

Lt. Wilson testified that he and the SWAT team cleared

the building by entering each room in the entire building to

make sure there were no other suspects. The Mayor of the

City of Sea Isle also entered the building during this sweep.

Lt. Wilson then secured the residence so that no one would

enter the premises again until a search warrant was

procured. This sweep took somewhere between five and

twenty minutes.

The precise sequence thereafter is unclear. At Sgt.

Kennedy's deposition he stated that he and Sgt. Felsing

then went to obtain a search warrant from Municipal Court

Judge Kenneth Calloway, that he met with Judge Calloway

and, before he had anything in writing, told him what had

occurred and asked for a "no knock search warrant" for the

premises and all vehicles on the premises. App. at 361-63.

Sgt. Kennedy then claimed that Judge Calloway gave him

oral permission to search the premises and told him to

supply the necessary paperwork later. App. at 364. Sgt.

Kennedy informed Lt. Wilson that Judge Calloway had

authorized the search warrant and that the premises could

be searched. Sgt. Kennedy went back to Brigden's residence

and conducted a "walk-through of the scene" at the same

time that Sgt. Larkin, pursuant to Lt. Wilson's direction,

conducted the search. He was accompanied by several

other police officers, county sheriffs, and dogs. Sgt.

Kennedy then returned to the police station where he

formally transcribed the information he previously had

given to Judge Calloway and placed it in a search warrant

application. Judge Calloway signed the search warrant at

approximately 7:30 p.m., after both the sweep and the

entire search had been completed. At Judge Calloway's

deposition, taken shortly after Sgt. Kennedy's deposition,

Judge Calloway testified that he did not remember"ever

giving a verbal search warrant or authorization to do

anything." App. at 530.

7

At the trial, Sgt. Kennedy acknowledged that he had

testified at his deposition that he had received an oral

warrant from Judge Calloway, and transmitted that

information to the officers at the residence. However, he

stated that his recollection had been refreshed by review of

the telephonic transmission. App. at 844-45. He testified, or

at least suggested, that the search was instituted following

a telephone call during which Lt. Wilson, who was at the

scene, was advised by Capt. Devlin that he had received a

telephonic or oral warrant from Judge Calloway. App. at

832-34, 836, 839-41.

The next day the four plaintiffs were arraigned before

Judge Calloway and were charged with burglary, assault,

making terroristic threats and conspiracy. All of the

charges were eventually dismissed.

B.

Procedural History

In their S 1983 complaint, the four plaintiffs sued Sgt.

Felsing, Sgt. Kennedy, Sgt. Larkin and Lt. Wilson for

violation of the Fourth and Fourteenth Amendments for

arresting them without probable cause, unreasonable

search and seizure, and use of excessive force. They also

brought a S 1983 claim against the City of Sea Isle for

fostering a policy which resulted in the constitutional

violations by the police force.

After discovery, the plaintiffs filed a motion for summary

judgment. The defendant officers and the City then filed

their own motion for summary judgment. On March 7,

1996, the district court entered an order, accompanied by

an opinion, denying the plaintiffs' motion and granting the

defendants' motion in part.

The district court held that the police had probable cause

to arrest, that the arrest occurred in a public place so no

warrant was required, that the excessive force claim only

involved an alleged injury to Ronald Sharrar's shoulder

which could not be attributed to any of the defendants, and

that the police's initial warrantless search of Bridgen's

8

residence was an acceptable protective sweep. As for the

second more extensive search, the court referred to it as a

warrantless search, and did not find any exceptional

circumstances present to justify conducting a warrantless

search. Dist. Ct. Op. of March 7, 1996 at 14. It held,

however, that the only named defendants who were

implicated in this search were Sgts. Larkin and Kennedy

and declined to grant summary judgment for plaintiffs as to

these defendants because there was a genuine issue of

material fact as to whether they were entitled to qualified

immunity based on their belief that they had an oral search

warrant. Finally, the district court granted summary

judgment for the City, finding that the plaintiffs failed to

present any evidence of a custom or policy of violating

constitutional rights.

A magistrate judge presided over the jury trial which was

held against Sgts. Larkin and Kennedy on the claim

involving the second search. Following the presentation of

evidence, plaintiffs filed a Motion for Judgment as a Matter

of Law on the issue of qualified immunity, which the

magistrate judge denied. The magistrate judge then

submitted the illegal search claim to the jury along with

special interrogatories. The jury found that the search of

the premises was unlawful but returned a verdict in favor

of the defendants, finding that Sgt. Larkin had a good faith

belief that he was authorized to search the premises and

that Sgt. Kennedy was not liable because he did not enter

and search Brigden's residence.

II.

SUMMARY JUDGMENT

We exercise plenary review over a district court's order

granting summary judgment, applying the same test as the

district court should use in the first instance, to determine

if there are any issues of material fact which would allow

the issue to go to trial. See Fed. R. Civ. P. 56; Hamilton v.

Leavy, 117 F.3d 742, 746 (3d Cir. 1997). The plaintiffs, as

the non-moving parties, are entitled to every favorable

inference that can be drawn from the record. Id.

9

A.

The Arrests

1. Probable Cause

Plaintiffs first argue that there was no probable cause to

arrest them or at least that it should have been a question

for the jury. Probable cause is "defined in terms of facts

and circumstances `sufficient to warrant a prudent man in

believing that the [suspect] had committed or was

committing an offense.' " Gerstein v. Pugh, 420 U.S. 103,

111 (1975) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).

This standard is meant to " `safeguard citizens from rash

and unreasonable interferences with privacy' " and to

provide "leeway for enforcing the law in the community's

protection." Id. at 112 (quoting Brinegar v. United States,

338 U.S. 160, 176 (1949)).

We have stated that "[t]he determination that probable

cause exists for a warrantless arrest is fundamentally a

factual analysis that must be performed by the officers at

the scene. It is the function of the court to determine

whether the objective facts available to the officers at the

time of arrest were sufficient to justify a reasonable belief

that an offense [had been] committed." United States v.

Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984), cert. denied,

471 U.S. 1018 (1985). A court must look at the "totality of

the circumstances" and use a "common sense" approach to

the issue of probable cause. Id. at 1205 (citing Illinois v.

Gates, 462 U.S. 213 (1983)).

In a S 1983 action the issue of whether there was

probable cause to make an arrest is usually a question for

the jury, but "where no genuine issue as to any material

fact exists and where credibility conflicts are absent,

summary judgment may be appropriate." Deary v. Three

Un-Named Police Officers, 746 F.2d 185, 192 (3d Cir. 1984).

The question is for the jury only if there is sufficient

evidence whereby a jury could reasonably find that the

police officers did not have probable cause to arrest. Id. at

190.

Sgt. Felsing responded almost immediately to Gannon's

911 call and found her injured and bleeding. She identified

10

her husband David Brigden as her attacker, stated that he

was assisted by three other men, and also stated that they

all left in a brown van to return to Brigden's residence. Sgt.

Felsing then drove to Brigden's residence and saw a brown

van parked in the driveway that was positively identified by

the license tag as belonging to Brigden. Because of the

close proximity to the alleged attack, both in time and

distance, the police had probable cause to arrest Brigden,

whom the victim had identified, and the three men who

were still with Brigden on the reasonable inference that

they were the same three men who had participated in the

assault.

The plaintiffs argue that Gannon's initial identification of

"Robert Carroll" as her assailant was enough to undermine

her credibility in the eyes of the police and creates a

genuine issue whether the police had probable cause to

arrest based on her subsequent identification of Brigden.

They cite authority which they claim required the police to

assess her reliability.

The cases on which plaintiffs rely involve informers, not

victims. "[T]he skepticism and careful scrutiny usually

found in cases involving informants, sometimes

anonymous, from the criminal milieu, is appropriately

relaxed if the informant is an identified victim. . . ." Easton

v. City of Boulder, 776 F.2d 1441, 1449 (10th Cir. 1985),

cert. denied, 479 U.S. 816 (1986). The district court

explained, and we agree, that "[t]he cloistered nature of

domestic violence is such that the testimony of the battered

spouse and the injury itself may be the only evidence

available to establish probable cause." Dist. Ct. Op. at 8.

Furthermore, there is no evidence that Sgt. Felsing heard

Gannon's initial claim that Robert Carroll attacked her.

Even if he had heard, it was reasonable for Sgt. Felsing to

assess Gannon's demeanor, find her story credible, and rely

on her subsequent identification of her husband as the

attacker. When a police officer has received a reliable

identification by a victim of his or her attacker, the police

have probable cause to arrest. See Torchinsky v. Siwinski,

942 F.2d 257, 262 (4th Cir. 1991) ("It is surely reasonable

for a police officer to base his belief in probable cause on a

victim's reliable identification of his attacker."); Grimm v.

11

Churchill, 932 F.2d 674, 675 (7th Cir. 1991) ("When an

officer has received his information from some person--

normally the putative victim or an eye witness--who it

seems reasonable to believe is telling the truth, he has

probable cause." (internal quotations omitted)).

Ronald Sharrar, Kenneth Sharrar and Gerard Sweeney

argue that even if there was probable cause to arrest David

Brigden based on Gannon's identification, there was not

sufficient evidence to arrest them. They cite the Supreme

Court decision in Ybarra v. Illinois, 444 U.S. 85, 91 (1979),

for the proposition that "mere propinquity to others

independently suspected of criminal activity does not,

without more, give rise to probable cause. . . ." In Ybarra,

a search warrant was issued to search a bar on the

suspicion that a bartender was involved in drug sales. The

police arrived and frisked all patrons based solely on their

presence at the public tavern. Ybarra, a patron, sought to

exclude evidence which was recovered from his person

during this search. The Supreme Court held that the

search violated the Fourth Amendment because the police

had no facts which would support a suspicion that Ybarra

had violated the law or that he was armed and presently

dangerous. See id. at 91-93.

Ybarra is inapposite. This is not a case where Ronald

Sharrar, Kenneth Sharrar and Gerard Sweeney were

arrested based on their "mere propinquity" to Brigden.

Rather, they were arrested based upon an assault victim's

description of her attack, which included a clear

identification of her husband and the statement that he

was accompanied by three other men who all left in a

brown van to go to Brigden's house. In less than an hour

from the time of the 911 call, Sgt. Felsing observed that van

outside of Brigden's house and learned from another

resident of the building that Brigden may not be alone.

These facts support a finding of probable cause to arrest all

four plaintiffs.

2. Warrantless Arrest

Plaintiffs next contend that their arrests were illegal, even

if probable cause existed, because the arrests occurred

within their home unaccompanied by a warrant. Although

12

police may make a warrantless arrest in a public place if

they have probable cause to believe the suspect is a felon,

"the Fourth Amendment has drawn a firm line at the

entrance to the house. Absent exigent circumstances, that

threshold may not reasonably be crossed without a

warrant." Payton v. New York, 445 U.S. 573, 590 (1980).

The district court found that the arrests occurred in a

public place so no warrant was required: "[T]he police

telephoned the plaintiffs at home and asked them to come

out. They consented to do so and were arrested outside, in

a public place, at the moment the police took physical

custody of them." Dist. Ct. Op. at 9. Thus, notwithstanding

that the court recognized that "a substantial amount of

coercion motivated plaintiffs' consent," id., the court found

there to be no jury issue.

The point at which an arrest occurs has been the subject

of considerable judicial line-drawing. In Terry v. Ohio, 392

U.S. 1, 19 n.16 (1968), the Supreme Court defined a

seizure as "when the officer, by means of physical force or

show of authority, has in some way restrained the liberty of

a citizen. . . ." Later, in I.N.S. v. Delgado, 466 U.S. 210, 215

(1984), the Court explained that a person has been seized

within the meaning of the Fourth Amendment "if, in view of

all the circumstances surrounding the incident, a

reasonable person would have believed that he was not free

to leave." (internal quotations omitted). In the most recent

decision on the issue, the Supreme Court in California v.

Hodari D., 499 U.S. 621, 626 (1991) explained that "[a]n

arrest requires either physical force . . . or, where that is

absent, submission to the assertion of authority." (emphasis

in original).

Under any of these tests, when a SWAT team surrounds

a residence with machine guns pointed at the windows and

the persons inside are ordered to leave the house

backwards with their hands raised, an arrest has

undoubtably occurred. There was a clear show of physical

force and assertion of authority. No reasonable person

would have believed that he was free to remain in the

house. We hold that under these circumstances the arrests

occurred inside Brigden's home. See United States v. Al-

Azzawy, 784 F.2d 890, 893 (9th Cir. 1985) (arrest occurred

13

in the home when police surrounded the residence and

ordered the person out with a bullhorn), cert. denied, 476

U.S. 1144 (1986); United States v. Maez, 872 F.2d 1444,

1450 (10th Cir. 1989) (where SWAT team surrounded

trailer with rifles pointed and ordered suspect to exit, arrest

occurred in home despite lack of physical entry). Therefore,

the police were required to have secured an arrest warrant

unless there were exigent circumstances. See Payton, 445

U.S. at 590.

The district court held that even if the arrests occurred

indoors, exigent circumstances justified the warrantless

arrests. The government bears the burden of proving that

exigent circumstances existed: "Before agents of the

government may invade the sanctity of the home, the

burden is on the government to demonstrate exigent

circumstances that overcome the presumption of

unreasonableness that attaches to all warrantless home

entries." Welsh v. Wisconsin, 466 U.S. 740, 750 (1984).

In explicating further on the type of exigent

circumstances that would justify a warrantless entry into a

person's home, the Court quoted the Minnesota Supreme

Court with approval where it stated: "a warrantless

intrusion may be justified by hot pursuit of afleeing felon,

or imminent destruction of evidence, . . . or the need to

prevent a suspect's escape, or the risk of danger to the

police or to other persons inside or outside the dwelling."

Minnesota v. Olson, 495 U.S. 91, 100 (1990) (internal

quotations omitted); see United States v. Velasquez, 626

F.2d 314, 317 (3d Cir. 1980).

There is an insufficient basis on this record to hold, as

the district court did, that exigent circumstances existed as

a matter of law. There is nothing in the record to support

a theory of "hot pursuit," a fear that the suspects would

flee, or a fear that evidence would be destroyed. It appears

that, at most, the police believed that the suspects posed a

danger because Gannon said she had been hit with a gun.

The mere possession of a gun, which as far as the officers

knew had been used only once and then against Brigden's

wife, no matter how grievous a crime, does not necessarily

show exigent circumstances. The police have not

satisfactorily explained why, when the house was

14

completely surrounded by an armed SWAT team, they

could not secure the premises while they went to procure

an arrest warrant, especially in light of the fact that

Municipal Court Judge Calloway was sitting on the bench

at the police station during this entire episode.

The issue of exigent circumstances in these

circumstances would be one for the jury. See, e.g., Bodine

v. Warwick, 72 F.3d 393, 399 (3d Cir. 1995) (issue of

whether exigent circumstances existed should go to jury

when there are disputed factual issues). However, there is,

at most, evidence that only two of the defendants were

involved in the arrest. Sgt. Felsing may be viewed by a fact

finder as having effected the arrest by telephoning the order

to exit to the plaintiffs, and he apparently did so under the

direction of Lt. Wilson, the officer in charge of the

operation. Thus, in summary, we cannot affirm the district

court's disposition of the plaintiffs' claims based on that

court's view that the arrests raised no constitutional issue.

B.

Excessive Force

We turn next to plaintiffs' contention that the district

court erred in holding that there was insufficient evidence

to present a jury issue on their claim that excessive force

was used to arrest them. When an "excessive force claim

arises in the context of an arrest or investigatory stop of a

free citizen, it is most properly characterized as one

invoking the protections of the Fourth Amendment, which

guarantees citizens the right `to be secure in their persons

. . . against unreasonable . . . seizures' of the person."

Graham v. Connor, 490 U.S. 386, 394 (1989). The proper

test for evaluating an excessive force claim is therefore one

of objective reasonableness. See id. at 397.

This objective reasonableness test "requires careful

attention to the facts and circumstances of each particular

case, including the severity of the crime at issue, whether

the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest

or attempting to evade arrest by flight." Id. at 396. See also

15

Groman v. Township of Manalapan, 47 F.3d 628, 634 (3d

Cir. 1995). Significantly, the Supreme Court has cautioned

that in applying the objective reasonableness test, "[n]ot

every push or shove, even if it may later seem unnecessary

in the peace of a judge's chambers," is constitutionally

unreasonable. 490 U.S. at 396 (internal quotations

omitted). Rather, "[t]he calculus of reasonableness must

embody allowance for the fact that `police officers are often

forced to make split-second judgments--in circumstances

that are tense, uncertain, and rapidly evolving--about the

amount of force that is necessary in a particular

situation.' " Id. at 396-97.

In granting summary judgment, the district court held

that only Ronald Sharrar alleged any physical injury and

that that injury could not be attributed to any of the

defendant officers. On appeal the plaintiffs argue that Lt.

Wilson, as the on-scene commander and SWAT team

leader, may be held liable for acquiescing in the

unconstitutional conduct of his subordinate officers, even if

he was not directly responsible for Ronald Sharrar's

injuries. Plaintiffs also argue that their excessive force

claim involves not just Sharrar's physical injury, but the

entire level of force and verbal abuse used in the arresting

process: deploying the SWAT team, forcing plaintiffs to lie

face down in the dirt, and threatening that if they moved

the police would "blow [their] . . . fucking heads off." App.

at 122.

Ronald Sharrar, the only plaintiff who alleged any

physical injury, stated in deposition that the injury to his

shoulder occurred after he was placed in the police car: "My

handcuffs were grabbed from behind and my arms were

lifted up from behind. . . .My shoulder came partially out of

the socket." App. at 105-06. The claims of the other

plaintiffs are limited to "emotional distress, humiliation"

and "public scorn and derision." Complaint, App. at 30.

Ronald Sharrar, who could recognize all of the defendant

officers, was unable to identify which police officers were in

the police car with him at the time of the alleged abuse.

There was therefore no evidentiary basis on which to hold

these defendants liable. Plaintiffs argue that Lt. Wilson may

be liable under the cases holding that a police officer may

16

be liable for violating an arrestee's rights not only if he

personally participates in the violation, but also if he

directs others to so violate, or had knowledge of and

acquiesced in his subordinates' violations. See Baker v.

Monroe Township, 50 F.3d 1186, 1190-91 (3d Cir. 1995).

However, there is no evidence in the record to suggest that

Lt. Wilson, as the officer in charge, had any knowledge of

the alleged incident in the police car. Therefore, we will not

disturb the district court's determination that the conduct

leading to Ronald Sharrar's injury could not be attributed

to Wilson.

Turning next to the extent of force employed in effecting

the four arrests, it is incontestable that the display of force

used to apprehend the four men for an alleged domestic

assault, albeit with a gun, appears extreme. It entailed

calling over twenty officers to the scene, including a SWAT

team armed with machine guns and an FBI hostage

negotiator. It does not follow, however, that the extreme

methods used in effecting the arrests, such as requiring

plaintiffs to lie face down in the dirt, with guns to their

heads and vulgar threats, were constitutionally excessive,

even though they caused plaintiffs' discomfort and

humiliation. Although there are decisions of this court that

have found the use of force excessive, notwithstanding the

absence of extensive physical contact and permanent

physical injury, the circumstances here are distinguishable.

In Black v. Stephens, 662 F.2d 181 (3d Cir. 1981), cert.

denied, 455 U.S. 1008 (1982), we sustained a jury verdict

in a case where a plain-clothed police officer brandished

and pointed a revolver at plaintiff and his wife during what

was at that time only an investigatory stop. However, in

that case there had been no basis for plaintiff to know that

the gunman was a police officer or that an arrest would

eventually be effected. And in Baker v. Monroe, 50 F.3d at

1193, where police officers ordered those approaching a

house that was the subject of an incipient drug raid to "get

down," pushing them to the ground, while using handguns,

we reversed the district court's grant of summary judgment

and suggested that the officers' actions could constitute a

constitutional violation. See also McDonald v. Haskins, 966

F.2d 292, 294 (7th Cir. 1992) (finding a violation of the

17

Fourth Amendment when a police officer aimed a gun at a

passive nine-year-old boy and threatened to pull the

trigger).

The Supreme Court made clear in Graham that each case

alleging excessive force must be evaluated under the

totality of the circumstances. The district court here

focused only on the presence vel non of physical injury. We

do not agree that the absence of physical injury necessarily

signifies that the force has not been excessive, although the

fact that the physical force applied was of such an extent

as to lead to injury is indeed a relevant factor to be

considered as part of the totality. See Gumz v. Morrissette,

772 F.2d 1395, 1400-01 (7th Cir. 1985) (holding that,

under substantive due process standard, excessive force

claim must be "so egregious as to be constitutionally

excessive, and the presence of some physical injury is

certainly relevant to that determination"), cert. denied, 475

U.S. 1123 (1986), overruled, Lester v. City of Chicago, 830

F.2d 706, 712-14 (7th Cir. 1987). Other relevant factors

include the possibility that the persons subject to the police

action are themselves violent or dangerous, the duration of

the action, whether the action takes place in the context of

effecting an arrest, the possibility that the suspect may be

armed, and the number of persons with whom the police

officers must contend at one time.

In this case, the officers were arresting four men, they

had been advised that at least one of the men, with the

assistance of others, had used a gun in a violent episode

which was still unaccounted for, there had been some

suggestion that they may have been involved with drugs,

and there is no allegation that the requirement that the

suspects lie down extended beyond the time necessary to

handcuff them and secure them. While the language and

method used to effect the arrests appear to be more akin to

the Rambo-type behavior associated with police in

overdramatized B movies or TV shows than the police

conduct ordinarily expected in a quiet, family seaside town,

we are reluctant to establish a precedent that would subject

every police arrest of a group of possible violent offenders to

compliance with Marquis of Queensberry Rules of fair play.

Although these police officers came close to the line, these

18

circumstances, in totality, do not rise to a Fourth

Amendment violation. Therefore, we will not hold erroneous

the district court's grant of summary judgment to the police

officers on the plaintiffs' claim of excessive force.

C.

The Searches

1. The "Protective Sweep"

The plaintiffs also argue that the district court erred

when it held constitutionally permissible the "protective

sweep" of the premises conducted by the defendants after

plaintiffs were arrested but before defendants procured a

search warrant. The Supreme Court has defined a

protective sweep as "a quick and limited search of

premises, incident to an arrest and conducted to protect

the safety of police officers or others." Maryland v. Buie,

494 U.S. 325, 327 (1990). The sweep must be limited to a

search of "closets and other spaces immediately adjoining

the place of arrest from which an attack could be

immediately launched." Id. at 334. If the search goes

beyond the immediately adjoining areas, there must be

"articulable facts" which would warrant a reasonably

prudent officer to believe that there are individuals who

pose a danger in other areas of the house. See id. at 334.

In this case, the officers sought to justify their

warrantless entry into Brigden's unit immediately following

effecting the arrest by telephone on the ground that it was

a quick protective sweep incident to the arrest and needed

to protect the safety of the officers involved. The officers

contend they entered the residence seeking to determine

that there were no other accomplices hiding in the building

with access to the gun that remained unaccounted for.

Although they swept more broadly than Brigden's unit, we

need not decide whether the sweep of the remainder of the

four-unit building was justified because these plaintiffs,

who were overnight guests of Brigden, only had a privacy

interest in Brigden's unit and lack standing to challenge a

search of other persons' apartments. Olson, 495 U.S. at 95

(Fourth Amendment protects from unreasonable searches

19

only those places where persons have a legitimate

expectation of privacy).

We note as an initial matter that we are not dealing with

a criminal case where the admissibility of evidence found

during a protective sweep following an unconstitutional

arrest would lead to suppression of the evidence as fruits of

the unconstitutional arrests. Under the jurisprudence of

this court, the validity of the search for purposes of a

S 1983 suit must be examined independently of the

lawfulness of the arrests. See generally, Bodine, 72 F.3d at

400 (in a S 1983 case, questions of reasonableness and

constitutionality of officers' conduct once inside the home

were not dependent on whether officers' entry into the

home was lawful since officers are liable in tort only for

injury proximately caused by their unreasonable conduct).

In Maryland v. Buie, the Supreme Court's seminal

decision on this issue, the Court explained why a protective

sweep "incident to [an] arrest" was permissible under the

Fourth Amendment notwithstanding it was "without

probable cause or reasonable suspicion." 494 U.S. at 334.

The Court explained:

In the instant case, there is an . . . interest of the

officers in taking steps to assure themselves that the

house in which the suspect is being, or has just been,

arrested is not harboring other persons who are

dangerous and who could unexpectedly launch an

attack. The risk of danger in the context of an arrest in

the home is as great as, if not greater than, it is in an

on-the-street or roadside investigatory encounter. .. .

A protective sweep . . . occurs as an adjunct to the

serious step of taking a person into custody for the

purpose of prosecuting him for a crime. Moreover,

unlike an encounter on the street or along a highway,

an in-home arrest puts the officer at the disadvantage of

being on his adversary's "turf." An ambush in a

confined setting of unknown configuration is more to be

feared than it is in open, more familiar surrounding.

Id. at 333 (emphasis added). In addition, the Court noted

that

20

the arrest warrant gave the police every right to enter

the home to search for Buie. Once inside, the potential

for danger justified a standard of less than probable

cause for conducting a limited protective sweep.

Id. at 334 n.1 (emphasis added). Finally, the Court

cautioned that, unlike an evidentiary search, "a protective

sweep, aimed at protecting the arresting officers, if justified

by the circumstances, is nevertheless not a full search of

the premises, but may extend only to a cursory inspection

of those spaces where a person may be found." Id. at 335.

Although this court has never ruled on the circumstances

in which a protective sweep of a home, as defined in Buie,

would be permissible as incident to an arrest occurring just

outside the home, those circuits that have addressed the

issue have uniformly held that the reasoning of Buie is also

applicable and that under those circumstances, protective

sweeps of the home in such situations are not per se

unreasonable, see, e.g., United States v. Colbert, 76 F.3d

773, 776-77 (6th Cir. 1996); United States v. Henry, 48

F.3d 1282, 1284 (D.C. Cir. 1995); United States v.

Kimmons, 965 F.2d 1001, 1009-10 (11th Cir. 1992), cert.

denied, 506 U.S. 1086 (1993), cert. granted and judgment

vacated on other grounds, Small v. United States, 508 U.S.

902 (1993), judgment reinstated, United States v. Kimmons,

1 F.3d 1144 (11th Cir. 1993); United States v. Oguns, 921

F.2d 442, 446 (2d Cir. 1990); United States v. Tisdale, 921

F.2d 1095, 1097 (10th Cir. 1990), cert. denied, 502 U.S.

986 (1991). Those courts also agree that a sweep incident

to an arrest occurring just outside the home must be

analyzed under the second prong of the Buie analysis

requiring "articulable facts which, taken together with the

rational inferences from those facts, would warrant a

reasonably prudent officer in believing that the area to be

swept harbors an individual posing a danger to those on

the arrest scene." Buie, 494 U.S. at 334.

Like our sister circuits, we see no reason to impose a

bright line rule limiting protective sweeps to in-home

arrests, as we agree with the Colbert court that "in some

circumstances, an arrest taking place just outside a home

may pose an equally serious threat to the arresting

officers." 76 F.3d at 776. Certainly, it would be imprudent

21

to prohibit officers who are effecting an arrest or waiting

until a warrant may be obtained from ensuring their safety

and minimizing the risk of gunfire or other attack coming

from inside the home if they have reason to believe that

dangerous individuals are inside. Therefore, in order to

determine whether the protective sweep in question met the

standard enunciated by the Supreme Court in Buie, we

must consider whether there was an articulable basis for a

protective sweep, i.e., a warrantless search, under the

circumstances at that time.

Predictably, where the courts have differed in permitting

protective sweeps incident to arrests outside the home is on

the quantity and quality of the articulable facts necessary

to justify the sweep, rather than on the underlying

standard. In Oguns, 921 F.2d at 446-47, for example, the

Second Circuit upheld a protective sweep following an

arrest outside the home where "[e]ven though the agents

had been told that Oguns' brother was not in the

apartment, they still could have reasonably believed that

others were in the apartment." Similarly in Tisdale, 921

F.2d at 1097, the Tenth Circuit upheld a protective sweep

following an arrest made outside the home, reasoning that

"the fact that defendant fled [from the trailer before being

arrested], along with the sounds of gunshots, was ample

justification for a protective sweep." In Colbert, 76 F.3d at

777-78, however, the Sixth Circuit invalidated a protective

sweep following an arrest made outside the home and after

the arrestee's girlfriend frantically ran out of the house to

the arrest site because the officers had no information as to

whether anyone else was still in the house following the

arrest. In so holding, the court reasoned that " `[n]o

information' cannot be an articulable basis for a sweep that

requires information to justify it in the first place". Id. at

778.

Although the parties before us have not focused on Buie

and the standard enunciated there, the officers do contend

that the protective sweep was justified in light of the

"legitimate fear for their safety given the totality of the

circumstances they faced." Appellee's Brief at 24.

Admittedly, if the officers had an articulable basis to believe

that a confederate of those apprehended was still at large or

22

within the premises and that a weapon previously sighted

and not yet recovered might be available within the

premises, the protective sweep could have been justified,

see, e.g., Kimmons, 965 F.2d at 1009-10. The reasonable

possibility that an associate of the arrestees remains at

large to do mischief or cause danger to the officers is the

salient, although not necessarily only, concern for which a

warrantless protective sweep is justified. The evidence from

these defendants themselves, however, negates reliance on

these possibilities as the articulable basis for the protective

sweep.

The transcript of the events as they were unfolding

contains the following dialogue:

MR. DEVLIN: Somebody from the Prosecutor's

Office talked to the wife, there's only one gun involved,

it's a pistol in the brown van in front of the house.

MR. McCLORY: 10-4. Keep them coming out the

back.

MR. WILSON: Brigden is not out yet, he should be

the fourth individual inside.

MR. FELSING: Felsing to L-8.

MR. McCLORY: If there's any movement to that

brown van, let us know.

MR. KENNEDY: I'm right on top of it, I am only 20

feet away from it.

Let's go back to the back, once they are out, we'll get

the gun.

MR. FELSING: Felsing to L-8.

MR. WILSON: You got this fourth guy on the phone,

Dennis?

MR. FELSING: Got him on the phone.

MR. WILSON: Send him out.

MR. FELSING: 10-4.

Okay he's coming out.

23

MR. McCLORY: C-2 to L-8, I think everybody is

clear.

MR. KENNEDY: The one in the front was covered.

MR. WILSON: Tommy, you got the front door?

MR. ROCK: Negative.

MR. WILSON: Stand by.

Dennis, is everybody out?

MR. FELSING: Confirmed.

MR. WILSON: We're ready for transport whenever

you are ready.

App. at 1075-76 (emphasis added).

Thus, under the circumstances, the fact that the officers

believed that Brigden had brandished a pistol cannot, on its

own, constitute sufficient "articulable facts" as required

under Buie for two reasons. First, it implies nothing

regarding the possible presence of anyone being in

Brigden's home -- the touchstone of the protective sweep

analysis. See Colbert, 76 F.3d at 777 (arrestee's

dangerousness is irrelevant to the protective sweep analysis

once the arrestee is in custody); United States v. Ford, 56

F.3d 265, 269 (D.C. Cir. 1995) (fact that homicide suspect

was assumed to be armed and dangerous did not justify

protective sweep beyond the immediate area of the arrest).

Second and more importantly, at the time of the protective

sweep, the officers at the scene had been informed, and

believed, that the gun allegedly used in the assault was not

in Brigden's residence, but in his van. App. at 1075-79.

Similarly unavailing to the officers is the fact that they

had been told that Brigden was accompanied by three

accomplices. Once all four men were out of the house and

in custody, the arresting officers had no basis, let alone the

"articulable facts" required under Buie, to conclude that

others remained inside. Indeed, as the transcript reveals,

Sgt. Felsing informed Lt. Wilson that everyone was out of

the house before the sweep was initiated. App. at 1076.

Because we agree with the court in Colbert that " `[n]o

information' cannot be an articulable basis for a sweep that

24

requires information to justify it in the first place," 76 F.3d

at 778, we conclude that the Buie "articulable facts"

standard was not met in this case, and we cannot sustain

the district court's grant of summary judgment for

defendants as to the protective sweep.

2. The Subsequent Search

Plaintiffs next challenge the court's disposition of their

claims that the subsequent full search of the building, also

conducted before a written search warrant was issued, was

unconstitutional. Plaintiffs argue that the district court

erred when it found that only Sgts. Kennedy and Larkin

were implicated in the search, and granted summary

judgment to Sgt. Felsing and Lt. Wilson on the ground that

"they played no part in the search." Dist. Ct. Op. at 17.

Sgt. Kennedy testified in his deposition that it was Lt.

Wilson who ordered Sgt. Larkin to conduct the search. Lt.

Wilson stated in his own deposition that he was in the

house during the time the search was being conducted,

although he claimed that he did not personally search the

premises. See App. at 439. Lt. Wilson was the highest

ranking officer at the scene and a reasonable jury could

conclude that the search was conducted under his

direction. It was therefore improper to grant summary

judgment in favor of Lt. Wilson.

However, the only evidence linking Sgt. Felsing to the

search was that he, along with Sgt. Kennedy, provided the

initial information orally to Municipal Court Judge Calloway

in order to procure a search warrant. Nothing suggests that

Sgt. Felsing knew that a telephonic or "verbal" warrant,

rather than a written warrant, was being procured and

there is no evidence that he played any part in the decision

to rely on that "verbal" warrant to conduct or authorize the

search. Inasmuch as Sgt. Felsing did not participate in the

search itself, it was not error to grant summary judgment

as to him.

To summarize, we conclude that the district court erred

in holding that there were exigent circumstances as a

matter of law to justify the warrantless arrests, that the

protective sweep was justified as a matter of law

notwithstanding the absence of articulable facts and that

25

there was no basis to hold Lt. Wilson responsible for the

subsequent search.

III.

QUALIFIED IMMUNITY

A.

Applicable Principles

A claim under section 1983 for damages against police

officers or other government officials will almost inevitably

raise issues as to the availability of qualified immunity.

Government officials performing discretionary functions are

"shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known." Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). In addition, and particularly in S 1983 cases

involving alleged violations of the Fourth Amendment, the

Supreme Court has emphasized that the inquiry is whether

a reasonable officer could have believed that his or her

conduct was lawful, in light of the clearly established law

and the information in the officer's possession. See Hunter

v. Bryant, 502 U.S. 224, 227 (1991) (per curiam); Anderson

v. Creighton, 483 U.S. 635, 641 (1987). Our cases have

followed that lead. See Kornegay v. Cottingham, 120 F.3d

392, 395-96 (3d Cir. 1997); Parkhurst v. Trapp, 77 F.3d

707, 712 (3d Cir. 1996); Orsatti v. New Jersey State Police,

71 F.3d 480, 483 (3d Cir. 1995).

Thus, law enforcement officials who "reasonably but

mistakenly" conclude that their conduct comports with the

requirements of the Fourth Amendment are entitled to

immunity. Hunter, 502 U.S. at 227. See also Anderson, 483

U.S. at 641; Kornegay, No. 96-7423, slip op. at 5; Orsatti,

71 F.3d at 483. In this way, "the qualified immunity

standard `gives ample room for mistaken judgments' by

protecting `all but the plainly incompetent or those who

knowingly violate the law.' " Hunter, 502 U.S. at 229

26

(quoting Malley v. Briggs, 475 U.S. 335, 343, 341 (1986));

Orsatti, 71 F.3d at 484. It follows that the officer's

subjective beliefs about the legality of his or her conduct

generally "are irrelevant." Anderson, 483 U.S. at 641. See

also Grant v. City of Pittsburgh, 98 F.3d 116, 123-24 (3d

Cir. 1996).

The first issue, whether the plaintiff alleges the violation

of a clearly established constitutional right, is purely a

question of law, and the Supreme Court has made clear

that this is a threshold question that should be decided

expeditiously to spare a defendant the "unwarranted

demands customarily imposed upon those defending a long

drawn out lawsuit." Siegert v. Gilley, 500 U.S. 226, 232

(1991).

The language in our cases is much less clear as to

whether the second issue, the reasonableness of the

official's mistaken belief in the lawfulness of his or her

conduct, presents an issue of law for the court or an issue

of fact for the jury. We have recently noted the "tension . . .

as to the proper role of the judge and jury where qualified

immunity is asserted." Sherwood v. Mulvihill, 113 F.3d 396,

401 n.4 (3d Cir. 1997) (citing Grant, 98 F.3d at 122). To

some extent that tension may be attributable to our effort

to comply with the Supreme Court's instruction that

qualified immunity defenses be resolved at the earliest

possible point in the litigation while recognizing the

difficulty in applying that instruction in situations where

there are disputes of relevant fact. See Grant, 98 F.3d at

122.

We are informed by the Supreme Court's discussion of

this issue in Hunter, 502 U.S. 224, a case that surprisingly

appears not to have been cited in any of this court's

reported opinions. Bryant, who was arrested by Secret

Service agents without a warrant for making threats

against the President, sued them for damages after the

criminal complaint against him was dismissed. The officers

moved for summary judgment on qualified immunity

grounds, alleging, inter alia, that they believed that they

had probable cause to make the arrest based on Bryant's

possession and delivery of a letter indicating that a "Mr.

Image" would assassinate President Reagan on the

27

President's upcoming trip to Germany, on tips that Bryant

had earlier that day talked of assassination generally and

told a co-worker that the President should have been

assassinated in Bonn, and on Bryant's refusal to answer

the agents' questions regarding his intent to harm the

President. Id. at 224-26. The denial of that motion by the

district court was affirmed by the Court of Appeals, which

stated that "[w]hether a reasonable officer could have

believed he had probable cause is a question for the trier of

fact, and summary judgment . . . based on lack of probable

cause is proper only if there is only one reasonable

conclusion a jury could reach." Id. at 228.

The Supreme Court disagreed, stating:

[t]his statement of law is wrong for two reasons. First,

it routinely places the question of immunity in the

hands of the jury. Immunity ordinarily should be

decided by the court long before trial. Second, the court

should ask whether the agents acted reasonably under

settled law in the circumstances, not whether another

reasonable, or more reasonable, interpretation of the

events can be constructed five years after the fact.

Id. (emphasis added) (internal citation omitted). The Court

then remanded the case for further proceedings.

A review of our opinions in the last three or four years

discloses that we have not always followed what appears to

be the Supreme Court's instruction that the reasonableness

of an official's belief that his or her conduct is lawful is a

question of law for the court, although other courts have

interpreted the opinion in that way. See, e.g., Pierce v.

Smith, 117 F.3d 866, 871 (5th Cir. 1997) (citing Hunter for

the proposition that "whether under the circumstances a

reasonable officer could believe probable cause for arrest

existed, thus giving rise to qualified immunity, is a question

of law").

Some of our cases have followed this approach, even

without citation to Hunter. In Parkhurst, for example, police

officers were sued in a S 1983 action based on the claim

that the warrantless search of plaintiff's home violated the

Fourth Amendment. 77 F.3d at 710. In reversing the

district court's grant of summary judgment on qualified

28

immunity grounds, we stated that "[t]o determine

reasonableness [of the search], a reviewing court must ask

`whether a reasonable person could have believed the

defendant's actions to be lawful in light of clearly

established law and the information he possessed.' " Id. at

712 (quoting Anderson, 483 U.S. at 641). We then applied

this standard and held that as a matter of law the search

violated the Fourth Amendment, and "the police officers

reasonably should have known that their conduct was

unlawful." Id. at 713.

We again applied this approach in our recent decision in

Rogers v. Powell, 120 F.3d 446 (3d Cir. 1997), where

plaintiff filed suit under S 1983 alleging that he had been

arrested with neither a warrant nor probable cause. The

district court granted the defendant officers summary

judgment on qualified immunity grounds. On appeal, we

held that no probable cause existed and turned to the issue

of qualified immunity, stating that "[w]hether a

governmental official is entitled to protection under the

doctrine of qualified immunity is a `purely legal question.' "

Id. at 454 (citing Acierno v. Cloutier, 40 F.3d 597, 609 (3d

Cir. 1994) (en banc)).

The qualified immunity issue in Rogers raised the

question whether defendant officers' reliance on the

statements of other officers was reasonable. On the issue

relevant here, the respective roles of the judge and the jury,

we stated that "where a police officer makes an arrest on

the basis of oral statements by fellow officers, an officer will

be entitled to qualified immunity from liability in a civil

rights suit for unlawful arrest provided it was objectively

reasonable for him to believe, on the basis of the statements,

that probable cause for the arrest existed." Id. at 455

(emphasis added). This court then examined the

information possessed by each defendant and determined

whether his belief that a warrant or probable cause existed

was reasonable. Id. at 455-57. Significantly, we made those

reasonableness determinations as a matter of law. Id.See

also Capone v. Marinelli, 868 F.2d 102, 104-06 (3d Cir.

1989) (stating that official's objective good faith is purely

legal question and holding it reasonable for officer to rely

on a facially valid written bulletin indicating that a warrant

existed).

29

We do not suggest that there may never be instances

where resort to a jury is appropriate in deciding the

qualified immunity issue. For example, in Karnes v.

Skurtski, 62 F.3d 485 (3d Cir. 1995), we reversed the

district court's grant of judgment as a matter of law on the

issue of qualified immunity. Plaintiff had alleged that

defendant police officers unlawfully searched his vehicle

following an investigatory stop. We held that because there

was a genuine issue of material fact as to whether the

officers in fact believed that certain "vegetable matter" seen

on the floor of the car was or likely could have been

marijuana, the issue of the officers' right to qualified

immunity was an issue of fact for the jury. We did not

reach the issue whether, had there been no factual dispute

about the officers' actual belief, the jury rather than the

court would have had to decide the question of the

reasonableness of their belief. Accord, Lampkin v. City of

Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) ("It must be

recognized that even though [Hunter v.] Bryant diminished

the jury's role in qualified immunity cases, it did not

entirely abolish it. Rule 56 still has vitality in qualified

immunity cases if [there are] underlying historical facts in

dispute that are material to the resolution of the questions

whether the defendants acted in an objectively reasonable

manner in view of the existing law and facts available to

them." (internal citations omitted)), cert. denied, 511 U.S.

1019 (1994).

We thus hold, following the Supreme Court's decision in

Hunter, that in deciding whether defendant officers are

entitled to qualified immunity it is not only the evidence of

"clearly established law" that is for the court but also

whether the actions of the officers were objectively

reasonable. Only if the historical facts material to the latter

issue are in dispute, as in Karnes, will there be an issue for

the jury. The reasonableness of the officers' beliefs or

actions is not a jury question, as the Supreme Court

explained in Hunter.

30

B.

Application of Qualified Immunity

1. The Protective Sweep

As discussed in part II.C.1. above, the protective sweep of

Brigden's home was unlawful because the officers at the

scene did not possess "articulable facts" justifying a

reasonable belief that dangerous individuals remained

inside the home after the arrests. To prevail on their

qualified immunity claim, -- a claim not reached by the

district court -- defendants must show that their conduct

did not violate a clearly established constitutional right of

which a reasonable officer would have been aware. Because

the resolution of that issue is purely a question of law,

there is no reason why this court should not address it

now.

The Supreme Court has never had the opportunity to

apply its holding in Maryland v. Buie, 494 U.S. 325 (1990),

to protective sweeps incident to arrests made just outside

the home. And prior to today, we have never had occasion

to apply the Court's reasoning in that case in a published

opinion. Thus, on October 1, 1992, the date of the

protective sweep, defendants had no express guidance as to

the lawfulness of their conduct from any directly controlling

authority. Moreover, at that time, two courts of appeals had

upheld protective sweeps incident to arrests made outside

the home under the Buie rationale by officers who had little

more in the way of articulable facts than did the defendants

in this case. See United States v. Oguns, 921 F.2d at 446-

47; United States v. Tisdale, 921 F.2d at 1097.

Thus, we conclude that the law as to protective sweeps

incident to arrests made outside the home was not clearly

established, and even though the protective sweep

conducted by the defendant officers exceeded constitutional

boundaries, defendants were protected by qualified

immunity.

2. Exigent Circumstances

In contrast to the issue of liability for the protective

sweep, the defendants' claim that they should be afforded

31

qualified immunity for the arrests, even if there were no

exigent circumstances, cannot be disposed of by this court

based on the absence of "clearly established law." The law

on exigent circumstances was fully developed at the time of

the incidents at issue, and a reasonable police officer

should have known the applicable law. We note, however,

that the Hunter Court framed the inquiry to be asked by

the court as to "whether the agents acted reasonably under

settled law in the circumstances." 502 U.S. at 228. From

our vantage point, we see no "circumstances" that would

affect application of the clearly established law, but are

cognizant that this issue was not addressed by the district

court. We are unwilling to pretermit argument by the

parties that may be relevant to the district court's

determination which, as we previously stated, is essentially

one of law. Nor is it clear that there are no disputes as to

the historical facts. If there are and if they would be

material to the determination, then the resolution of those

disputes would be for the jury. In sum, we are not in a

position to resolve the possibility of qualified immunity at

this time and will remand that issue to the district court.

3. The Second Search

It is also clearly established law under the Fourth

Amendment that "searches and seizures inside a home

without a warrant are presumptively unreasonable."

Payton, 445 U.S. at 586. Such warrantless searches are

prohibited "absent probable cause and exigent

circumstances." Welsh, 466 U.S. at 749. In the case at bar,

the district court held that no exigent circumstances

justified a warrantless search, and that issue is not before

us.

With respect to the existence of clearly established law,

the parties have focused on whether defendants complied

with New Jersey's law applicable to the issuance of

warrants. Although the primary issue is whether the search

was unconstitutional under the Fourth Amendment, that

question cannot be answered without reference to state law.

In Acierno, 40 F.3d at 620, this court looked to state law to

determine whether certain rights were "clearly established."

And in the Supreme Court's decision in Davis v. Scherer,

468 U.S. 183, 193 n.11 (1984), the Court suggested that

32

state law may be relevant to the immunity analysis where

that law bears directly upon the federal claim, such as

where a plaintiff 's property rights are defined by state law

for purposes of a due process challenge. Here, similar to

claims for the deprivation of property without due process,

the validity of the search under federal law depends in part

on the validity of the warrant under state law. Thus, the

officers' knowledge of the state warrant law bears directly

upon the reasonableness, under the Fourth Amendment, of

executing the search with an invalid warrant.

Under New Jersey Court Rule 3:5-3 (1992), search

warrants may be issued either orally or in writing after

complying with various procedural safeguards. Written

warrants may be issued when an applicant appears in

person before a judge providing his or her affidavit or

testimony and the judge finds that there are grounds for

issuing the warrant. The judge shall then "date and issue

the warrant identifying the property to be seized, naming or

describing the person or place to be searched and

specifying the hours when it may be executed." N.J. Ct. R.

3:5-3(a).

A telephonic warrant, on the other hand, may be issued

when the applicant is not physically present. The Rule,

however, sets forth a variety of heightened procedural

safeguards for the issuance of a telephonic warrant so that

"the integrity and soundness [of the issuing judge's]

determinations can be assured." New Jersey v. Valencia, 93

N.J. 126, 138, 459 A.2d 1149, 1155 (1983). Only a

Superior Court Judge, not a Municipal Court Judge like

Judge Calloway, is authorized to issue telephonic warrants.

The Rule further provides, inter alia, that the Superior

Court Judge must "contemporaneously record" the sworn

oral testimony of the person(s) providing information to

procure the warrant and satisfy him or herself that"exigent

circumstances exist sufficient to excuse the failure to

obtain a written warrant, and that sufficient grounds for

granting the application have been shown." N.J. Ct. R. 3:5-

3(b). Once the judge approves the warrant, the judge is

required to "memorialize the specific terms of the

authorization to search and shall direct the applicant to

enter this authorization verbatim on a form, or other

33

appropriate paper, designated the duplicate original search

warrant. This warrant shall be deemed a search warrant for

the purpose of [this Rule]." Id.

The judge must also "contemporaneously record factual

determinations as to exigent circumstances," certify a

transcription of the testimony, and "shall promptly issue a

written confirmatory search warrant and shall enter

thereon the exact time of issuance of the duplicate original

warrant." Id. By requiring strict adherence to these exacting

requirements, the Rule comports with the New Jersey

Supreme Court's insistence on "a reliable underpinning to

the judicial decision authorizing a search rendered over the

telephone." Valencia, 93 N.J. at 139, 459 A.2d at 1155.

The defendants do not deny that Judge Calloway lacked

any authority to issue a telephone warrant because he was

not a Superior Court Judge, that the judge did not create

a written document of the oral warrant, and that Sgt.

Kennedy did not transcribe the judge's oral warrant onto a

form "designated the duplicate original search warrant."

Without the creation of such a written record, "the

subsequent written warrant cannot be reliably compared to

any prior recordation to determine its fidelity to the

contents of the original application and oral authorization."

Valencia, 93 N.J. at 135, 459 A.2d at 1154.

Thus, with respect to the second search of Brigden's

residence, the district court, albeit granting summary

judgment for Felsing and Wilson on the ground that they

did not participate in the search, denied Larkin's and

Kennedy's motion for summary judgment on qualified

immunity grounds and directed that that issue be the

subject of the jury trial. At the close of the evidence in that

trial, presided over by the magistrate judge, plaintiffs filed

a motion for judgment as a matter of law on the issue of

qualified immunity, which the magistrate judge denied. He

charged the jury to decide whether the defendants actually

believed that the actions they took were lawful, whether the

defendants were motivated by malice or acted in callous

disregard or indifference to plaintiffs' rights, and whether

their mistake was the sort that a reasonably prudent officer

might make. The jury, answering special interrogatories,

decided that the warrant was invalid but that Sgt. Larkin,

34

the only defendant as to whom these interrogatories

applied, had an objectively reasonable good faith belief that

he was authorized to search Brigden's residence and

vehicles.

As is evident from our prior discussion of the principles

of qualified immunity, the first two questions given to the

jury were either erroneous or irrelevant. However, we need

not dwell on that error because the third question correctly

framed the immunity issue. And although it would

ordinarily have been a question of law for the court, in this

case there were some historical facts at issue. Specifically,

it appears to have been in dispute whether Sgt. Kennedy

appeared before Municipal Court Judge Calloway for a

telephonic warrant before the second search proceeded, and

there was even a factual issue as to whether Judge

Calloway issued a telephonic or oral warrant. Thus, this

situation is not dissimilar to that in Karnes where we held

that a factual dispute relating to qualified immunity must

be sent to the jury, and suggested that, at the same time,

the jury would decide the issue of objective reasonableness.

We see no reversible error in the determination that Sgt.

Larkin was entitled to qualified immunity.

The issue of qualified immunity as to Sgt. Kennedy was

never resolved by the jury as that issue was foreclosed by

the jury's response to the interrogatories dealing with the

role played by each of the remaining defendants in the

search, and thereafter with causation and damages. The

first interrogatory as to defendant Sgt. Kennedy asked: "Do

you find that Officer William Kennedy entered and searched

the plaintiffs' residence and/or vehicles on the afternoon of

October 1, 1992?" App. at 1194. The jury was told that if

it answered "No" to this question, it should not further

consider liability against Sgt. Kennedy. Plaintiffs objected to

this interrogatory at trial on the ground that it unduly

limited the basis on which Sgt. Kennedy could be held

liable, and raise their objection again on appeal.

Plaintiffs argue that they presented ample evidence at

trial that Sgt. Kennedy played a crucial role in the unlawful

search, such as by conveying to the officers at the scene

that he had obtained a valid search warrant and by failing

to direct that the search be stopped as soon as he realized

35

that there was no warrant.1 Therefore, they contend that

the jury should have been allowed to consider whether

Kennedy should be held responsible for his role in the

search, regardless of whether he physically entered

Brigden's residence.

We have plenary review over the propriety of the

challenged interrogatory as it involves a question of the

correct legal standard. Mosely v. Wilson, 102 F.3d 85, 94

(3d Cir. 1996). The limitation of the interrogatory to

whether Sgt. Kennedy "entered and searched" the residence

reflects an erroneous view of the law. Sgt. Kennedy may be

held liable for his role in the illegal search if the jury found

that he participated by procuring an invalid warrant or

authorizing the search based on that warrant. See, e.g.,

Malley, 475 U.S. at 345 (holding that police officer can be

held liable for applying for and relying upon a warrant that

no reasonable officer would rely upon, despite the fact that

a magistrate judge issued the warrant). Therefore, plaintiffs

were entitled to have the jury decide Sgt. Kennedy's liability

based on the totality of his conduct.

Similarly, we have held it was error to grant summary

judgment for Lt. Wilson as to the second search. It follows

that he too will be entitled to a determination on his

qualified immunity claim. Moreover, we note from our

decision in Rogers that the entitlement to qualified

immunity may depend upon circumstances individual to

the role played by each defendant, an issue that the district

court will have to consider in the first instance.

_________________________________________________________________

1. At trial the plaintiffs presented transcripts of the radio

transmissions

which occurred during the course of the search, and Sgt. Kennedy read

his own statement made during the search to Sgt. Larkin that "I'm

finishing typing [the warrant] out. I had to retype everything because

nobody knows what the F. they're doing . . . . [Wilson] got the telephonic

search warrant . . . now apparently that wasn't done. So we had to do

the paperwork. I got the affidavit done, the search warrant is in the

typewriter." App. at 846.

36

IV.

CONCLUSION

We affirm the district court's grant of summary judgment

to the defendants on the issues of probable cause to arrest

and the alleged use of excessive force. We reverse the

district court's grant of summary judgment to defendants

Sgt. Felsing and Lt. Wilson on the issue of the warrantless

arrest but affirm the judgment in favor of Sgts. Larkin and

Kennedy.

With respect to the searches, we reverse the district

court's holding that the protective sweep was lawful, but

hold that defendants were entitled to qualified immunity on

that claim. As to the second warrantless search, we affirm

the grant of summary judgment for Sgt. Felsing, but hold

that plaintiffs were entitled to a jury trial as to Lt. Wilson,

in addition to Sgts. Kennedy and Larkin, and that the

interrogatory given to the jury regarding Sgt. Kennedy's role

in the second search was erroneous.

On remand, the jury will have to decide whether Lt.

Wilson and Sgt. Felsing were justified by exigent

circumstances for making a warrantless arrest inside

Brigden's home and, if not, and assuming that relevant

historical facts remain in dispute, whether they are entitled

to qualified immunity. The jury will also have to decide

whether the actions of Lt. Wilson and Sgt. Kennedy

constituted participation in the second search and, if

material historical facts remain in dispute, whether they

are entitled to qualified immunity. Finally, if the jury finds

for plaintiffs on the preceding issues, the jury must then

determine causation and damages.

For the foregoing reasons, we will affirm in part, reverse

in part, and remand for further proceedings consistent with

this opinion.

37

POLLAK, District Judge, concurring in part and dissenting

in part.

Except as to one issue, I find the court's opinion in this

difficult case masterly: comprehensive, cogent, correct. The

one issue on which I part company with the court is that

canvassed in part II.B of the court's opinion. The court

there sustains the district court's grant of summary

judgment dismissing plaintiffs' claims that the police used

excessive force in arresting them. Stating that it is

"reluctant to establish a precedent that would subject every

police arrest of a group of possible violent offenders to

compliance with the Marquis of Queensberry Rules of fair

play," the court, while acknowledging that "these police

officers came close to the line," concludes that "these

circumstances, in totality, do not rise to a Fourth

Amendment violation." With great respect, I disagree. I

believe that a fact-finder could, on the evidence before the

district court, reasonably conclude that the police officers

crossed the line. I think it error for this court to hold that

arrest methods which the court characterizes as "more akin

to . . . Rambo-type behavior . . . than the police conduct

expected in a quiet, family seaside town," merit, as a matter

of law, a constitutional seal of approval. In my judgment,

the district court should have permitted the question

whether excessive force was used to go to the jury.

I will not undertake to set forth at length the factual

record which underlies my assessment, since the court's

opinion fairly states the essential facts. I will, however, set

the general scene and highlight certain details which seem

particularly relevant to the excessive-force issue. On

October 1, 1992, the Sea Isle Police Department deployed

all of its on-duty officers, and brought in reinforcements

from neighboring towns as well as from its own off-duty

roster, to arrest four men who were inside a building and

suspected of an assault involving a pistol. At the time of the

arrests, various officers stationed outside the building

carried, aside from their standard sidearms, .30 caliber

rifles, submachine guns, and shotguns. One member of the

SWAT team was posted as a sniper. Although no witness

recounted the exact number of officers on the scene, a

conservative figure can be assembled from the record of

38

some twenty officers on the scene. This means that at the

point of arrest, which was effectuated by SWAT team

members wearing body armor, the police outnumbered the

suspects by a ratio of at least five to one. When the four

plaintiffs, pursuant to police directive, emerged from the

building, they were made to lie down in the dirt and

menaced with loaded revolvers by officers who, allegedly,

were threatening to "blow your . . . fucking heads off."

I believe that, at the very least, the plaintiffs have raised

a genuine issue of material fact concerning whether it was

"objectively reasonable," under the standards the Supreme

Court articulated in Graham v. Connor, 490 U.S. 386, 396

(1989), for the officers to use the force they did in arresting

the plaintiffs. Graham's fact-sensitive inquiry "requires

careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the

safety of officers or others, and whether [the suspect] is

actively resisting arrest or attempting to evade arrest by

flight." Id. In light of the record before the court, a jury

could reasonably find that the force the officers employed in

making this arrest was excessive.

The record, viewed, as it must be, most favorably toward

the plaintiffs, indicates that four suspects--the very

number the police expected to find--filed out of the building

as directed by the officers. The police radio transcript cited

in part II.C.1 of the opinion indicates that the officers were

apprised, before all the suspects had come out of the

building, that the gun allegedly involved was not on the

person of any of the arrestees.2 On this account, plaintiffs

have certainly raised a triable issue of whether it was

objectively reasonable under these circumstances to hold a

loaded weapon to the head of a suspect and employ death

threats punctuated by obscenity while the apparently

_________________________________________________________________

2. The police radio transcript quotes Mr. Devlin as stating "there's only

one gun involved, it's a pistol in the brown van in front of the house."

The Devlin statement tends to undercut the court's statement in part

II.B that the gun "was still unaccounted for." To the extent that the

degree of force deployed by the police in making the arrests may be said

to have depended on alleged uncertainty as to the whereabouts of the

gun, there would appear to be dispute about a material fact.

39

unarmed and cooperative suspects were held to the ground

and handcuffed. Considering the formidable array of

officers and firepower stationed outside, and given that

plaintiffs apparently did not resist arrest, it would be

reasonable for a jury to conclude that the force deployed

was excessive. Therefore, summary judgment in favor of the

defendants was not appropriate. See Groman v. Township of

Manaplan, 47 F.3d 628, 634 (3d Cir. 1995)(reversing grant

of summary judgment on excessive-force claim because jury

could have found police behavior unreasonable).

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

40