Curley v. Klem

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

8-24-2007

Curley v. Klem

Precedential or Non-Precedential: Precedential

Docket No. 05-4701

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 05-4701

_______________

CORVET CURLEY;

ELAINE CURLEY

v.

RONALD KLEM, a Police Officer,

SUED IN HIS INDIVIDUAL CAPACITY;

JOHN DOE; BILL DOE,

two currently unknown Police

Officers also sued in their

individual capacities

Corvet Curley,

Appellant

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 98-cv-05256)

District Judge: Honorable Katharine S. Hayden

_______________

Argued March 27, 2007

Before: FISHER, JORDAN and ROTH, Circuit Judges

(Filed: August 24, 2007)

_______________

David S. Gould [ARGUED]

Steven L. Salzman

Richard L. Huffman

David S. Gould, P.C.

61 Broadway - Suite 2820

New York, NY 10006

Counsel for Appellant

Jeffrey M. Kadish, Esq. [ARGUED]

Morgan Melhuish Abrutyn

651 West Mount Pleasant Avenue - # 200

Livingston, NJ 07039-1673

Counsel for Appellees

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

This civil rights suit, after a long and difficult history,

is before us for the second time. Plaintiff Corvet Curley

(“Curley”), an officer with the Port Authority of New York

2

and New Jersey, and his wife, Elaine, sued defendant Ronald

Klem (“Klem”), a New Jersey State Trooper, under 42 U.S.C.

§ 1983, alleging that Klem violated Curley’s constitutional

rights by shooting him while both Curley and Klem were

responding to a police emergency at the George Washington

Bridge. The Curleys appeal from a judgment order of the

United States District Court for the District of New Jersey,

entered after a jury trial. The jury made various findings of

fact through special interrogatories, and stated by a verdict

sheet its conclusion that Trooper Klem had not acted

unreasonably under the circumstances. Based on those

findings, the District Court entered judgment in favor of Klem

on the basis of qualified immunity. For the reasons that

follow, we will affirm, albeit on different grounds.

I.

A. Factual Background

On the evening of November 20, 1997, at

approximately 8:45 p.m., Trooper Klem was on duty and

learned that a suspect, Deon Bailey (“Bailey”), had shot and

killed a Long Branch police officer and stolen a police car. A

follow-up radio transmission informed Klem that Bailey was

on the Garden State Parkway and had fired shots at a another

police car. Shortly after 9:00 p.m., Klem received another

transmission, this one saying that Bailey was now in a green

Toyota Camry he had stolen from a woman at a gas station.

A few minutes later, a further radio transmission described

3

Bailey as a “tall, black male”1 and stated that he was headed

north in the Camry on the New Jersey Turnpike. Klem and

several other troopers found Bailey on the Turnpike and

began chasing him, while Bailey shot at them. One of the

troopers in the chase was shot in the arm, and Klem’s

windshield was struck by a bullet.

During the chase, Klem ended up as the nearest trooper

behind Bailey. He followed Bailey to the toll plaza at the

George Washington Bridge, where, according to his

testimony, he briefly lost sight of the Camry. He then saw the

Camry stopped on the far left side of the plaza. Klem stopped

his car about thirty yards back, and approached the Camry at a

jog. He testified that he was unaware of any other police

officers on the scene at that time, and that he did not wait for

back-up.

Klem did not know that Bailey, upon arriving at the

toll plaza, had crashed the Camry at high speed into a Nissan

Pathfinder that was waiting in a toll lane. The crash sent the

Pathfinder spinning out into the toll plaza some thirty feet

from where the Camry had stopped. Immediately after the

crash, Bailey shot himself in the head. According to a toll

1

At the summary judgment stage of the case, Klem

claimed that the radio transmission described Bailey as a

“thin, black male” rather than a “tall, black male.” See Curley

v. Klem, 298 F.3d 271, 274 (3d Cir. 2002) (“Curley I”).

However, at trial, Klem stated that the transmission had

described the suspect as a “tall black male” and that he had

misheard it as “thin black male.”

4

booth attendant and another law enforcement officer, Bailey

was sprawled across the passenger seat of the Camry. The

toll booth attendant stated that he had no trouble seeing the

body. That same attendant next saw the two principal parties

in this dispute, Curley and Klem, approaching the ill-fated

scene.

Curley was on duty that evening at the bridge. He was

in his Port Authority police uniform, although not wearing his

hat. He too had received a radio transmission stating that a

black male in a stolen vehicle was being pursued by the New

Jersey State Police, and was heading toward the bridge. By

now it was nearing 9:30 p.m. Curley went to the New York

side of the toll plaza in his marked police car, with both the

lights and sirens on. After reaching the plaza, he turned his

sirens off but left the lights on. He then saw a vehicle, which

he later learned was the stolen Camry, headed toward the toll

plaza at a high rate of speed, and he heard it crash into the

Pathfinder.

Curley drove his car toward the Pathfinder and stopped

next to it. He looked over at the Camry, but had trouble

seeing inside of it because the front end was smashed. He

unholstered his gun, told the driver of the Pathfinder to stay in

his vehicle, and moved toward the Camry. Curley testified

that, at this point, he had his gun pointed toward the Camry.

Realizing that he did not have cover, Curley pointed his gun

at the ground, turned and began to move back toward his own

car.

5

At approximately the same time that Curley was

investigating the scene, Klem approached the back of the

Camry with a shotgun in hand. He saw a toll collector

pointing toward the center of the toll plaza. Klem testified

that he had not heard any shots, and that all of the doors on

the Camry were closed. Klem approached the Camry from

the back right, and stopped by the right front passenger door,

close enough to the Camry to be able to touch it. He testified

that, as he approached the Camry, he looked into the rear seat

of the vehicle and into the front seat of the vehicle; he

testified that the air bags had deployed, and that the interior of

the Camry was filled with dust from the air bags. Klem stated

that, at that time, he did not see a body in the Camry and did

not see blood on the air bags or seat.

Klem turned in the direction that the toll collector had

been pointing and saw a black male with a gun in his hand.

According to Klem, the man had both hands on the gun and

was pointing it directly at him. Klem testified that he

shouted three times for the man with the gun, who was, in

reality, Curley, to drop his gun. He also testified that Curley

raised and lowered his gun to point at Klem three times while

backpedaling away from Klem. Klem hesitated briefly, then

fired his shotgun,2 hitting Curley in the leg. Immediately after

he fired, someone screamed to him that he had just shot a cop.

Klem then looked into the Camry and saw Bailey’s body.

2

At his deposition, Klem testified that about thirty seconds

passed between the time he first saw Curley and the time he

fired his shotgun. At trial, he testified that only ten to fifteen

seconds had passed.

6

Klem testified that, had he earlier seen the body in the Camry,

he never would have shot Curley.3 Curley testified that he

never saw Klem and that he never heard anyone tell him to

drop his gun.

B. Procedural Background

Curley filed suit under 42 U.S.C. § 1983, alleging that

Klem used excessive force against him, in violation of the

Fourth Amendment.4 Curley’s wife joined in the complaint,

alleging loss of consortium. After discovery, the District

Court granted summary judgment in favor of Klem. It held

that Klem’s conduct was objectively reasonable and that he

was thus shielded by qualified immunity. See Curley I, 298

3

It is undisputed that Bailey had been alone, and that Klem

knew that.

4

“To state a claim for excessive force as an unreasonable

seizure under the Fourth Amendment, a plaintiff must show

that a ‘seizure’ occurred and that it was unreasonable.”

Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999) (citing

Brower v. County of Inyo, 489 U.S. 593, 599 (1989)). An

officer seizes a person whenever he “restrains the freedom of

a person to walk away[.]” Tennessee v. Garner, 471 U.S. 1, 7

(1985). Thus, there is “no question” that a shooting

constitutes a seizure under the Fourth Amendment. Id.

(“[T]here can be no question that apprehension by the use of

deadly force is a seizure subject to the reasonableness

requirement of the Fourth Amendment.”). The question that

remains is whether the shooting was reasonable.

7

F.3d at 276 (recounting procedural history). Curley appealed,

and we reversed the summary judgment. See id. at 273-74. In

that opinion, we analyzed both the question of whether

Klem’s conduct had violated Curley’s constitutional rights,

and whether Klem was entitled to qualified immunity. We

did so recognizing – indeed we reiterated it no less than four

times in different ways – that, because we were reviewing a

decision on a summary judgment motion, we were required to

take the facts as Curley, the non-movant, had alleged them

and to view every fact and inference in the light most

favorable to Curley. See id. at 276-77; 279-80; 282-83.

Given that procedural perspective, we determined that Klem’s

actions would constitute an unreasonable seizure. Id. at 280.

Next, we decided that, in the District Court’s qualified

immunity analysis, the Court had not recognized factual

disputes that precluded a grant of summary judgment. Id. at

281. Specifically, we noted that a number of facts, including

whether Klem looked inside the Camry and how Curley

behaved during the confrontation between him and Klem,

were disputed and required resolution by a jury. Id. at 281-

83. Thus, we remanded the case to the District Court for

resolution of the disputed facts by a jury. Id. at 283.

On remand, the District Court held a jury trial and

submitted both special interrogatories and a liability verdict

sheet to the jury. In answer to the special interrogatories, the

jury found that, when Klem approached the Camry, Bailey’s

body was on the front seat of the car, not on the floorboards,

and that Klem did not look into the window of the car.

Furthermore, the jury found that Bailey’s body should have

8

been visible to someone standing in Klem’s position but that

Klem had not made an objectively reasonable effort to look

into the Camry. The jury also found that it was objectively

reasonable for Klem to believe that the toll collector was

signaling to the center of the plaza. Additionally, the jury

found that Curley did not repeatedly point his gun at Klem,

and that, when Curley was shot, he was not raising his gun to

point it at Klem. Finally, the jury could not reach a

unanimous decision and so did not answer whether Curley’s

police uniform was visible to someone in Klem’s position or

whether it was reasonable for Klem to believe that Curley was

in civilian clothing.

In addition to the special interrogatories, the District

Court submitted to the jury a liability verdict sheet asking

whether Klem’s conduct was objectively reasonable. See

Curley v. Klem, 2006 WL 414093, at *2 (D.N.J. Feb. 21,

2006) (“Post-trial Opinion”). More precisely, the liability

verdict sheet contained four questions, three of which the jury

answered. Question One asked the jury whether “Trooper

Ron Klem’s failure to act in an objectively reasonable manner

in observing the Camry prevent[ed] him from seeing the

perpetrator’s body in the Camry?” Question Two asked “Did

Trooper Ron Klem act in an objectively reasonable manner in

shooting Officer Curley during the confrontation?” Question

Three asked “Was Trooper Ron Klem’s mistake in firing his

weapon objectively reasonable?” The fourth question, left

unanswered by the jury, asked whether “the plaintiff

suffer[ed] damages that were proximately caused by Trooper

Ron Klem’s conduct?”

9

The jury answered yes to Question One, thus finding

that Klem’s failure to look in the Camry was not objectively

reasonable. However, the jury also found, in response to

Question Two, that Klem did act in an objectively reasonable

manner during the confrontation with Curley. Finally, in

response to Question Three, the jury found that Klem’s

mistake in firing his weapon was objectively reasonable.

Based on these findings, and with no separate analysis, the

District Court entered judgment for Klem, stating that Klem

was entitled to qualified immunity based on the jury’s answer

to Question Three, and also noting the jury’s answer to

Question Two.

Curley moved for judgment as a matter of law or a new

5

trial. In its opinion addressing those post-trial motions, the

District Court stated that the parties had agreed early in the

case “that the jury would decide the issue of qualified

immunity, and not the Court.” Id. at *4. On appeal, however,

Curley points to several places in the record where he

objected to the inclusion of Question Three on the liability

verdict sheet and where he argued that a determination of

qualified immunity was a question of law for the Court, not

the jury. See Joint Appendix at A125 (“A jury can contribute

fact finding to a qualified immunity question but not law

finding”); Trial Transcript at T113 (“[Counsel for Klem]

wants the jury to decide objectionable [sic] reasonableness

5

For purposes of the following discussion, when we speak

of Officer Curley taking certain legal positions, it should be

understood that his wife and co-plaintiff has also taken those

positions.

10

and then to decide whether there was a violation of the state

of the law. Which you called the second prong on qualified

immunity. And what is very clear is that no case ever did or

could submit that to the jury.”). Whether the District Court

misunderstood Curley’s position or Curley failed to make it

clear during the framing of the special interrogatories and the

verdict sheet, the objective reasonableness of Klem’s actions

was put to the jury.

In support of his post-trial motions, Curley argued that

the jury’s general liability verdict was not supported by the

facts the jury had found in the special interrogatories and that

the verdict should therefore be overridden. He also argued

that the verdict could not stand because it was internally

inconsistent, since it faulted Klem’s action in not looking in

the Camry and yet stated that Klem’s behavior, including the

mistaken shooting, was reasonable. The District Court found

that the jury’s verdict was not inconsistent, and that the facts

found by the jury in the special interrogatories did not warrant

overturning the jury’s verdict for Klem. Post-trial Opinion,

2006 WL 414093, at *2-5.

The District Court reasoned that Curley was attempting

to reduce the case “down to a handful of seconds in the

continuum of events.” Id. at *2. Rejecting that effort, the

District Court found that the relevant events spanned a

lengthy period, beginning at the time that Klem received the

first radio transmission about Bailey. Id. Thus, the Court

stated, although

11

those seconds discussed by the Third Circuit are

important, still they were singled out not

because they were “the case,” but because this

[District] Court erroneously saw them as

unfolding only one way. That the jury decided

otherwise, that it viewed some of the

preshooting events contrary to Trooper Klem’s

account, does not necessarily drive a

determination that he acted unreasonably when

he mistakenly shot Officer Curley.

Id. The District Court therefore found that there was no

inconsistency or tension between the jury’s answers to the

Special Interrogatories and its answers on the Liability

Verdict Sheet. Id. Characterizing Questions One and Two as

“General Liability” questions, the District Court held that

those questions did not present alternative theories of liability.

Id. at *5. The Court also held that the jury had decided in

Question Three that Klem was entitled to qualified immunity.

Id. at *3-5. Accordingly, the Court denied Curley’s motion

for judgment as a matter of law or a new trial. Id. at *5.

Curley then filed this appeal. He raises five questions,

some of which are conceptually overlapping: (1) Whether the

District Court erred in putting to the jury the question of the

objective reasonableness of Klem’s mistake in shooting

Curley; (2) Whether the District Court erred in refusing to

treat the jury’s answers to special interrogatories as requiring

a verdict for Curley; (3) Whether the District Court likewise

erred in refusing to treat the jury’s answer to the first question

on the verdict sheet, which dealt with Klem’s failure to see

12

Bailey’s body in the Camry, as requiring a verdict for Curley

(Curley calls this his “first theory of liability”); (4) Whether

the District Court erred in refusing to enter a verdict for

Curley or to order a new trial based on Klem’s actions in the

confrontation and shooting (Curley’s “liability theory number

two”); and (5) Whether the District Court erred in refusing to

treat Curley’s two liability theories as alternatives that

necessitated a verdict for Curley if the jury agreed with either.

II.

The District Court had jurisdiction over this case under

28 U.S.C. §§ 1331 and 1343, and entered final judgment on

September 29, 2005. This Court has jurisdiction over final

judgments of the District Court under 28 U.S.C. § 1291.

The standard of review for a motion for judgment as a

matter of law is plenary. Lightning Lube, Inc. v. Witco Corp.,

4 F.3d 1153, 1166 (3d Cir. 1993) (“We exercise plenary

review of an order granting or denying a motion for judgment

as a matter of law and apply the same standard as the district

court.”). The standard of review on a motion for a new trial is

“abuse of discretion unless the court’s denial of the motion is

based on application of a legal precept, in which case our

review is plenary.” Honeywell, Inc. v. American Standards

Testing Bureau, Inc., 851 F.2d 652, 655 (3d Cir. 1988).

13

III.

A. The Saucier Test for Qualified Immunity

As we noted in Curley I, the claim here arises under 42

U.S.C. § 1983, which “provides a cause of action for any

person who has been deprived of rights secured by the

Constitution or laws of the United States by a person acting

under color of law.” 298 F.3d at 277. Police officers,

embodying the authority of the state, are liable under § 1983

when they violate someone’s constitutional rights, unless they

are protected by qualified immunity. Qualified immunity is

“the best attainable accommodation of competing values ... .”

Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). Since public

officials exercising discretionary powers may sometimes

abuse their discretion, the immunity is qualified, rather than

absolute, so that civil damages can serve as a restraint. At the

same time, the immunity incorporates a recognition that

“claims frequently run against the innocent as well as the

guilty – at a cost not only to the defendant officials, but to

society as a whole.” Id. While unproductive societal costs

may be unavoidable in a system that relies on private

litigation as one means to enforce our constitutional norms,

the aim of qualified immunity is to limit those costs to the

greatest practical degree. We do not want to let the threat of

litigation and personal liability “deter[] ... able citizens from

acceptance of public office[,]” nor do we want to “dampen the

ardor of all but the most resolute, or the most irresponsible

public officials, in the unflinching discharge of their duties.”

Id. (internal quotation marks, brackets, and citation omitted).

Hence, “[t]his immunity is broad in scope and protects ‘all but

14

the plainly incompetent or those who knowingly violate the

law.’” Couden v. Duffy, 446 F.3d 483, 501 (3d Cir. 2006)

(Weis, J., dissenting) (quoting Malley v. Briggs, 475 U.S. 335,

341 (1986)).

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme

Court articulated a two step test for determining whether a

government official, such as a police officer, is entitled to

qualified immunity.6 In the first step, a court must address

whether “the officer’s conduct violated a constitutional

right[.]” Id. at 201. In an excessive force case, whether there

is a constitutional violation is “properly analyzed under the

Fourth Amendment’s ‘objective reasonableness’ standard[.]”

Graham v. Connor, 490 U.S. 386, 388 (1989). The relevant

inquiry is “the reasonableness of the officer’s belief as to the

appropriate level of force[,]” which “should be judged from

[the officer’s] on-scene perspective,” and not in the “20/20

vision of hindsight.” Saucier, 533 U.S. at 205 (internal

citations and quotation marks removed).

6

Saucier was not the first time the Court had framed the

analysis in two parts, see Siegert v. Gilley, 500 U.S. 226, 232

(1991) (“A necessary concomitant to the determination of

whether the constitutional right asserted by a plaintiff is

‘clearly established’ at the time the defendant acted is the

determination of whether the plaintiff has asserted a violation

of a constitutional right at all.”), but it is the decision that has

become synonymous with the current approach to qualified

immunity analysis.

15

That reasonableness 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 the officers

or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Graham, 490 U.S. at

396. The analysis “requires a careful balancing of the nature

and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing governmental

interests at stake.” Id. (citations and internal quotation marks

omitted). The balancing must be conducted in light of the

facts that were available to the officer. See Maryland v.

Garrison, 480 U.S. 79, 85 (1987) (“[W]e must judge the

constitutionality of [the officers’] conduct in light of the

information available to them at the time they acted.”). It is,

in other words, a “totality of the circumstances” analysis. See

Curley I, 298 F.3d at 279 (assessing objective reasonableness

of defendant’s actions on basis of totality of the

circumstances); cf. Graham, 490 U.S. at 396 (proper

application of reasonableness test used to analyze a claimed

violation of Fourth Amendment right against unreasonable

seizure “requires careful attention to the facts and

circumstances of each particular case”); Abraham, 183 F.3d at

289 (“How much force is permissible to effectuate an arrest ...

is determined based on the ‘totality of the circumstances.’”).

“If, and only if, the court finds a violation of a

constitutional right,” Scott v. Harris, 127 S. Ct. 1769, 1774

(2007), the court moves to the second step of the analysis and

asks whether immunity should nevertheless shield the officer

16

from liability.7 The question at this second step is whether the

right that was violated was clearly established, or, in other

words, “whether it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted.”

Saucier, 533 U.S. at 202. The Court explained that, again,

“this inquiry ... must be undertaken in light of the specific

context of the case, not as a broad general proposition.” Id. at

201. The Court went on to emphasize that even where

reasonableness is a part of the inquiry for both the

constitutional question and for qualified immunity, as it is in

an excessive force case, the inquiries remain distinct. Id. at

204-05. “The concern of the immunity inquiry is to

acknowledge that reasonable mistakes can be made as to the

legal constraints on particular police conduct.” Id. at 205.

Thus, the first step of the analysis addresses whether

the force used by the officer was excessive, and therefore

violative of the plaintiff’s constitutional rights, or whether it

was reasonable in light of the facts and circumstances

available to the officer at the time. This is not a question of

immunity at all, but is instead the underlying question of

whether there is even a wrong to be addressed in an analysis

of immunity. The second step is the immunity analysis and

addresses whether, if there was a wrong, such as the use of

excessive force, the officer made a reasonable mistake about

the legal constraints on his actions and should therefore be

protected against suit

7

As further explained herein, infra at sections IV.B and

IV.C, we do not have occasion to reach that second step here,

because no constitutional violation occurred in this case.

17

While the Saucier analytical approach has been

criticized for being unduly rigid and demanding resolution of

constitutional issues when cases could be more simply

disposed of on other grounds, see, e.g., Los Angeles County,

California v. Rettele, 127 S. Ct. 1989, 1994 (2007) (Stevens,

J., dissenting) (discussing the “unwise practice of deciding

constitutional questions in advance of the necessity for doing

so.”); Scott, 127 S. Ct. at 1774 n.4 (recounting criticisms of

Saucier); P. Leval, Judging Under the Constitution, 81 NYU

L. Rev. 1249, 1275-81 (2006) (describing Saucier as

requiring courts to engage in “a puzzling misadventure in

constitutional dictum”), its order of inquiry nevertheless

remains mandatory. Scott, 127 S. Ct. at 1774 n.4 (declining

to “address the wisdom of Saucier”).

B. Evolving Approaches to Applying the Test

The length of the foregoing review notwithstanding,

the two-step Saucier test can be stated simply. Its application,

however, presents perplexing logical and practical problems.

The point of immunity is to protect someone from the burden

imposed by litigation itself. It is supposed to be “an immunity

from suit rather than a mere defense to liability ... .” Mitchell

v. Forsyth, 472 U.S. 511, 526 (1985) (original emphasis).

Hence, the Supreme Court has instructed that “[i]mmunity

ordinarily should be decided by the court long before trial.”

Hunter v. Bryant, 502 U.S. 224, 228, (1991). That is well and

good when there are no factual issues in a case, but often the

facts are intensely disputed, and our precedent makes clear

that such disputes must be resolved by a jury after a trial.

E.g., Estate of Smith v. Marasco, 430 F.3d 140, 152-53 (3d

18

Cir. 2005); Curley I, 298 F.3d at 278; Reitz v. County of

Bucks, 125 F.3d 139, 147 (3d Cir. 1997). As a practical

matter, then, in such cases the immunity becomes no more

than a mere defense, Sloman v. Tadlock, 21 F.3d 1462, 1468

n.6 (9th Cir. 1994), and a sometimes challenging one to

establish at that.

The fundamental challenge lies in the nature of the

questions that compose the test. Since they are mixed

questions of law and fact, one is left to ask who should

answer them. As we noted in Curley I, “[a] disparity of

opinion exists among our sister circuits as to whether a judge

or jury should make the ultimate immunity determination.”

298 F.3d at 278 n.3. The First, Fourth, Seventh, and

Eleventh Circuits have all indicated that qualified immunity is

a question of law reserved for the court.8 The Fifth, Sixth,

8

See Rodriguez-Marin v. Rivera-Gonzalez, 438 F.3d 72,

83 (1st Cir. 2006) (“While preliminary factual questions

regarding qualified immunity are sent to the jury, the legal

question of the availability of qualified immunity is ultimately

committed to the court’s judgment.”) (internal quotation

marks omitted); Willingham v. Crooke, 412 F.3d 553, 560

(4th Cir. 2005) (“The issue having now come before us, we

hold that the legal question of a defendant’s entitlement to

qualified immunity under a particular set of facts should be

decided by the court, not by the jury.”); Riccardo v. Rausch,

375 F.3d 521, 526 (7th Cir. 2004) (“Immunity, however, is a

matter of law for the court, to be decided without deference to

the jury’s resolution-and preferably before the case goes to

the jury.”); Johnson v. Breeden, 280 F.3d 1308, 1318 (11th

19

Ninth, and Tenth Circuits have permitted the question to go to

juries.9 Precedent from the Second and Eighth Circuits can be

Cir. 2002) (“When the case goes to trial, the jury itself

decides the issues of historical fact that are determinative of

the qualified immunity defense, but the jury does not apply

the law relating to qualified immunity to those historical facts

it finds; that is the court’s duty.”).

9

See McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir.

2000) (“while qualified immunity ordinarily should be

decided by the court long before trial, if the issue is not

decided until trial the defense goes to the jury which must

then determine the objective legal reasonableness of the

officers’ conduct.”); Champion v. Outlook Nashville, Inc., 380

F.3d 893, 900 (6th Cir. 2004) (“The issue of whether qualified

immunity is applicable to an official’s actions is a question of

law. However, where the legal question of qualified

immunity turns upon which version of the facts one accepts,

the jury, not the judge, must determine liability.”) (internal

citations and quotation marks omitted); Ortega v. O’Connor,

146 F.3d 1149, 1156 (9th Cir. 1998) (finding no error in “the

district court’s ‘extra’ reasonableness test, which ...

constituted an appropriate and proper instruction to the jury

on the second prong of the defendants’ qualified immunity

defense-whether a reasonable state official could have

believed his conduct was lawful-the prong as to which the

existence of factual disputes requires the jury’s

determination.”); Maestas v. Lujan, 351 F.3d 1001, 1010

(10th Cir. 2003) (“In short, the disputed issues of material fact

concerning the objective reasonableness of Mr. Lujan’s

20

viewed as being on both sides of the issue, with the evolution

being toward reserving the question for the court.10

actions are dispositive of the qualified immunity issue.

Further, as stated above, Mr. Lujan retained the defense of

immunity from liability even though the jury was needed to

resolve issues of objective legal reasonableness. Therefore,

the district court properly presented the reasonableness

element of the qualified immunity analysis to the jury.”).

10

Compare Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir.

2003) (“We believe that use of special interrogatories in this

case resolves the difficulty of requiring the jury to decide

‘what the facts were that the officer faced or perceived’ and

requiring the court to make the ultimate legal determination of

whether qualified immunity attaches on those facts.”) with

Oliveira v. Mayer, 23 F.3d 642, 650 (2d Cir. 1994) (“The

District Court should have let the jury (a) resolve these factual

disputes and (b) based on its findings, decide whether it was

objectively reasonable for the defendants to believe that they

were acting within the bounds of the law when they detained

the plaintiffs.”); see also Kerman v. City of New York, 374

F.3d 93, 109 (2d Cir. 2004) (discussing roles of judge and

jury in qualified immunity analysis, and citing both

Stephenson and Oliveira). Compare Littrell v. Franklin, 388

F.3d 578, 585 (8th Cir. 2004) (“Where, as in this case, factual

questions prevent a district court from ruling on the issue of

qualified immunity, it is appropriate to tailor special

interrogatories specific to the facts of the case. This practice

allows the jury to make any requisite factual findings that the

district court may then rely upon to make its own qualified

21

Our precedents too have evolved. Our recent

precedents say that the court, not a jury, should decide

whether there is immunity in any given case. E.g., Harvey v.

Plains Twp. Police Dept., 421 F.3d 185, 194 n.12 (3d Cir.

2005); Carswell v. Borough of Homestead, 381 F.3d 235, 242

(3d Cir. 2004); Doe v. Groody, 361 F.3d 232, 238 (3d Cir.

2004). But that was not always our counsel. We had

previously permitted the jury to answer the key immunity

question of whether the challenged behavior of a government

official was objectively reasonable. In Sharrar v. Felsing,

128 F.3d 810, 830-31 (3d Cir. 1997), we referred with

approval to our earlier decision in Karnes v. Skrutski, 62 F.3d

485 (3d Cir. 1995), characterizing it as holding that, “a factual

dispute relating to qualified immunity must be sent to the jury,

and suggest[ing] that, at the same time, the jury would decide

the issue of objective reasonableness.” Sharrar, 128 F.3d

830-31.

immunity ruling. Special interrogatories related to the

qualified immunity defense are not improper per se, but they

must be carefully crafted so that the fact-finder’s role is

limited to determining whether the underlying facts are as the

plaintiff has alleged or proved.”) (internal citations and

quotation marks omitted) with Turner v. Arkansas Ins. Dept.,

297 F.3d 751, 754 (8th Cir. 2002) (in discussing an official’s

burden to come forward with “undisputed and material facts

that demonstrate that his actions were reasonable under the

circumstances[,]” the Court stated that “[i]f such facts are

undisputed, then that is a question of law to be reviewed by a

court; if not, then it is a question for a jury and summary

judgment is improper.”)

22

Later, in Curley I, we cited Sharrar for the proposition

“that a jury can evaluate objective reasonableness when

relevant factual issues are in dispute.”11 298 F.3d at 279. We

also went on to say, however, that it would not be

inappropriate “for a judge to decide the objective

reasonableness issue once all the historical facts are no longer

in dispute[,]” and we suggested the use of special

interrogatories as a means to that end. Id.

Finally, in a line of cases beginning with Doe v.

Groody, we began highlighting that “qualified immunity is an

objective question to be decided by the court as a matter of

law.” Carswell, 381 F.3d at 242 (citing Doe, 361 F.3d at

238). In Carswell, we elaborated on that point. We explained

that the jury “determines disputed historical facts material to

the qualified immunity question[,]” and we again suggested

that “District Courts may use special interrogatories to allow

juries to perform this function,” id. (citing Curley I, 298 F.3d

at 279). We emphasized that “[t]he court must make the

ultimate determination on the availability of qualified

immunity as a matter of law.” Id. That emphasis reemerged

in Harvey, when we cited Carswell and Doe for the

11

We are not suggesting that the objective reasonableness

of an officer’s view of the law may be submitted to the jury.

Rather, we are recognizing that, when material issues of fact

are in dispute, our past precedents, in particular Karnes,

Sharrar, and Curley I, have allowed the jury to resolve those

disputes and also to determine the objective reasonableness of

the officer’s conduct in light of the facts.

23

proposition that qualified immunity is purely a question of

law to be answered by the court. 421 F.3d at 194 n.12.

It appears that much of the discussion in Carswell was

dicta, since we were actually affirming in that case the grant

of judgment for the defendant as a matter of law, following

the presentation of the plaintiff’s case at trial. 381 F.3d at

239, 245. In a technical sense, then, the dicta is not binding.

See Abdelfattah v. United States Dept. of Homeland Security,

488 F.3d 178, 185 (3d Cir. 2007) (“While ‘[i]t is the tradition

of this court that the holding of a panel in a precedential

opinion is binding on subsequent panels,’ Internal Operating

Procedure 9.1, it is also well established that we are not bound

by dictum in an earlier opinion.”) (citing Mariana v. Fisher,

338 F.3d 189, 201 (3d Cir. 2003)). It has nevertheless been

repeated and understood as a definitive direction on the

respective roles of judge and jury when a qualified immunity

defense is raised. See, e.g., Johnson v. Anhorn, 416 F. Supp.

2d 338, 361 (E.D. Pa. 2006) (“[Q]ualified immunity is an

objective question to be decided by the court as a matter of

law... . The jury, however, determines disputed historical

facts material to the qualified immunity question.”) (quoting

Carswell, 381 F.3d at 242); Iwanejko v. Cohen & Grigsby,

P.C., 2006 WL 2659109, at *9 (W.D. Pa. Sept. 15, 2006)

(quoting Carswell and stating, “in the Third Circuit ‘qualified

immunity is an objective question to be decided by the Court

as a matter of law.’”); Brown v. City of Camden, 2006 WL

2177320, at *7 (D.N.J. July 27, 2006) (citing Carswell and

saying “In this Circuit, the Court must make the ultimate

determination on the availability of qualified immunity as a

matter of law.”).

24

There is some irony in this, since Carswell relied on

Curley I and Sharrar, correctly citing them as support for the

proposition that objective reasonableness is a question of law.

But neither Curley I nor Sharrar stand for the related

proposition that the question of objective reasonableness

cannot be presented to a jury. Indeed they both teach “that a

jury can evaluate objective reasonableness when relevant

factual issues are in dispute.” Curley I, 298 F.3d at 279; see

also Sharrar, 128 F.3d at 830-31.

Nevertheless, the Carswell approach, despite its

limitations, see infra at section III. C., appears to have taken

root and to represent the pattern and practice both in our

Circuit and much of the rest of the country. We therefore take

the opportunity to reiterate and clarify a central message from

that case: whether an officer made a reasonable mistake of

law and is thus entitled to qualified immunity is a question of

law that is properly answered by the court, not a jury.

Carswell, 381 F.3d at 242. When a district court submits that

question of law to a jury, it commits reversible error.

Question Three on the liability verdict sheet was

evidently intended to reach the question of qualified

immunity.12 However, as we discuss further below, the

12

We acknowledge again that our language in Curley I left

open the possibility of giving that question to the jury.

Discussing “the procedure for deciding the immunity question

when the existence of disputed issues of fact precludes

disposition on summary judgment,” 298 F.3d at 278, we

stated:

25

We addressed the issue in Sharrar, in which we

observed that the “reasonableness of the

officers' beliefs or actions is not a jury

question,” 128 F.3d at 828, but qualified that

observation by later noting that a jury can

evaluate objective reasonableness when relevant

factual issues are in dispute, id. at 830-31. This

is not to say, however, that it would be

inappropriate for a judge to decide the objective

reasonableness issue once all the historical facts

are no longer in dispute. A judge may use

special jury interrogatories, for instance, to

permit the jury to resolve the disputed facts

upon which the court can then determine, as a

matter of law, the ultimate question of qualified

immunity.

Id. at 279. We cannot fault the District Court for following

our instructions on remand. Unlike our dissenting colleague,

we do not view Curley I as making “clear the respective roles

of the judge and jury in cases such as this,” post at 18. To the

extent Curley I can be read as allowing the District Court to

submit the question of qualified immunity to the jury we are

hard pressed to say the District Court erred in doing so. We

hope, however, that it will now be clear that the second step in

the Saucier analysis, i.e., whether an officer made a

reasonable mistake about the legal constraints on police action

and is entitled to qualified immunity, is a question of law that

is exclusively for the court. When the ultimate question of the

objective reasonableness of an officer’s behavior involves

26

question as framed actually pertains to whether there was any

constitutional violation at all. Since it properly presented an

essentially factual question regarding the constitutional

violation, it was not error for the jury to consider it.

C. The Challenge of Preserving “Totality of

Circumstances” Review

As this case demonstrates, trying to separate the

ultimate from the underlying questions is no easy matter and

can have a disturbing, unintended consequence. It can

undermine the basic principle that both the threshold

constitutional question and the immunity question are to be

decided on the totality of the circumstances.

Fundamental fairness dictates a totality-of-the-

circumstances review, since the test for reasonableness “is not

capable of precise definition or mechanical application,” Bell

v. Wolfish, 441 U.S. 520, 559 (1979). It depends on all of the

chaotic details that emerge in real time in real life.13 Yet the

tightly intertwined issues of fact and law, it may be

permissible to utilize a jury in an advisory capacity, see infra

at sec. III.C., but responsibility for answering that ultimate

question remains with the court.

13

We have here a fundamental parting of the ways with the

dissent. While our colleague sees this case as coming down

to, to use her analogy, one domino in the sequence of events,

post at 12, we feel compelled to recognize that reality is a

27

method that we and many other courts have taken to address

the mixed legal and factual questions posed by the Saucier

test cannot easily, perhaps cannot ever, capture those

circumstances in their totality. When one picks and chooses a

few questions to pose to a jury to ferret out historical facts,

staying away from asking the broader question of what

constitutes reasonable behavior under those facts, one cannot

help but focus attention on some events to the diminution or

exclusion of others. In short, a totality-of-the-circumstances

test is replaced by a test focusing on those few circumstances

featured in the questions a court is able and willing to

articulate.

The District Court clearly saw that problem in this

case. As quoted before, the judge observed that the analysis

in this case could not properly be shrunk into the few

moments immediately before Klem shot Curley, but instead

must be decided in light of all the events which had taken

place over the course of the entire evening. Post-trial

Opinion, 2006 WL 414093, at *2. The desire to avoid the

kind of difficulty presented here is perhaps what has

motivated other courts to sanction the alternative approach of

permitting the question of objective reasonableness to go to

juries. See Sloman, 21 F.3d at 1468 (“[S]ending the factual

issues to the jury but reserving to the judge the ultimate

‘reasonable officer’ determination leads to serious logistical

difficulties. Special jury verdicts would unnecessarily

good deal more complicated than the simple causality evident

in falling dominoes.

28

complicate easy cases, and might be unworkable in

complicated ones.”).

In spite of the foregoing problem inherent in

articulating specific questions to address factual issues, our

most current precedent counsels that course.14 However,

while the judge must make the ultimate determination

regarding the objective reasonableness of challenged

behavior, that does not mean that the use of an advisory jury

is foreclosed. We need not consider the propriety of such a

step under the circumstances presented here, though, because

the jury in this case was not acting in an advisory capacity.

The Court put to the jury the question of the objective

reasonableness of Klem’s actions, and the Court upheld the

verdict rendered.

14

We note that in the Supreme Court’s recent decision in

Scott, 127 S. Ct. 1769 (2007), the Court stated that, because

the case “was decided on summary judgment, there [had] not

yet been factual findings by a judge or jury ... .” Id. at 1774

(emphasis added). Without wanting to read too much into

that statement, since it may refer to nothing more than a case

in which the parties waive any right to a jury, it appears the

Court at least contemplated a circumstance where a judge may

resolve factual issues. Certainly the dissent in Scott was

concerned about judicial fact finding. See id. at 1781

(Stevens, J., dissenting) (“Relying on a de novo review of a

videotape ..., eight of the jurors on this Court reach a verdict

that differs from the views of the judges on both the District

Court and the Court of Appeals who are surely more familiar

with the hazards of driving on Georgia roads than we are.”).

29

IV.

A. The Jury Was Not Choosing Between Alternative

Theories of Liability

The jury was not facing a choice of alternative liability

theories driven by “outcome-determinative facts,” as Curley

would have it. See Post-trial Opinion, 2006 WL 414093, at

*4. The District Court rightly rejected that view. We did not,

in Curley I, presume to set forth any theories of liablilty, let

alone the strict alternatives Curley characterizes our opinion

as requiring. We simply identified “disputed issues of

material fact with regard to at least two key events – the

inspection of the suspect’s vehicle and the actual

confrontation between Klem and Curley.” 298 F.3d at 281.

As Curley sees it, resolution of the factual issues in his favor

was not merely a necessary condition for him to prevail, it

was an entirely sufficient condition. But that was never so.

Our pointing to “at least two key events[,]” id. (emphasis

added), accurately implied that there were more facts on the

table than the two areas of dispute we singled out for

discussion. Consistent with our own cases and with precedent

from the Supreme Court, we could not have directed the

District Court to ignore the totality of the circumstances and

to focus instead on those two areas.

Even if those specifically identified factual areas were

the only ones to be considered, it is an unwarranted leap to

say that the jury’s responses to selected yes-or-no questions

means that only one set of inferences and conclusions can be

30

drawn from those responses. For example, the jury’s answer

of “no” to the question of whether “Officer Curley raise[d] his

gun to point directly at Trooper Ron Klem several times

during ‘the confrontation’” might mean that the jury decided

that Curley had raised his gun to point at Klem only once or

twice, rather than “several times,” as the question asks.15 One

need not draw the inference that Curley demands. Indeed, we

cannot. Though multiple inferences are possible, we must

draw all inferences in Klem’s favor, rather than Curley’s,

since we are reviewing a verdict for Klem. See McGreevy v.

Stroup, 413 F.3d 359, 364 (3d. Cir. 2005) (on a motion for

judgment as a matter of law under Federal Rule 50(a),

evidence must be viewed “in the light most favorable to the

nonmoving party”). In short, any ambiguity in the

interrogatories and the answers to them must, at this stage, be

interpreted against Curley. The District Court therefore did

not err in rejecting Curley’s “alternative theories of liability”

view of the verdict sheet.

B. The Focus Should Have Been on the Threshold

Question

Where the District Court did go astray was in assuming

that a constitutional violation had occurred and then applying

its efforts to answering the question of immunity. The

Court’s confusion appears to have been the product both of

15

Given that Curley acknowledged pointing the gun in the

direction of the Camry and that Klem was standing next to the

car, it is not fanciful to believe that the jury could have

interpreted the question as described.

31

language in our Curley I opinion and of the intertwined

questions of objective reasonableness posed by the two

prongs of the Saucier test when applied to this case.

The panel in Curley I addressed the question of

whether Klem’s conduct violated Curley’s constitutional

rights in the summary judgment context, and thus

“consider[ed] only the facts alleged by Curley, taken in the

light most favorable to him.” Curley I, 298 F.3d at 280. In

determining that, under Curley’s version of the facts, he had

established a violation of his constitutional rights, we said:

[T]hese facts, viewed in the light most favorable

to Curley, are sufficient to support the claim

that Klem’s shooting of Curley constituted an

unreasonable seizure, violative of Curley’s

rights under the Fourth Amendment. ... [W]e

find that under Curley’s account of events, it

was unreasonable for Klem to fire at Curley

based on his unfounded, mistaken conclusion

that Curley was the suspect in question.

Id. at 280 (emphasis added). The District Court apparently

read our opinion as establishing that Curley’s constitutional

rights were violated. In its ruling on post-trial motions, the

District Court stated that “there was a constitutional violation

in that Officer Curley had a right not to be shot by Trooper

Klem.” 2006 WL 414093, at * 1. That, however, is an

oversimplification and a misreading of Curley I. Whether

Klem committed a constitutional tort turns not on the simple

fact that he shot the wrong man. That would end the inquiry

32

before it began. The question is whether Klem’s use of force,

even though mistakenly directed, was objectively reasonable

in light of the totality of the circumstances. That question had

yet to be answered when Curley I was decided, since a trial

was required. There is no substitute for “slosh[ing one’s] way

through the factbound morass of ‘reasonableness.’” Scott,

127 S. Ct. at 1778.

Thus, our earlier opinion was not a decision on

whether, under all of the facts and circumstances of the case,

Klem’s conduct violated Curley’s constitutional rights. The

jury was not bound at trial, and the District Court was not

bound post-trial, by our earlier statements involving a

hypothetical set of facts favoring Curley, since the facts and

inferences actually found by the jury were clearly different

than those which we were required to posit in Curley I when

considering the summary judgment order.16

16

The procedural posture of Curley I provides another key

reason why we cannot agree with the dissent. Our colleague

takes as a given that Curley I established alternative theories

of liability based on a “simple syllogism,” post at 13-14, but

Curley I was in a procedural posture that required every

inference to be drawn for Curley. It thus did not present an

opportunity to frame a set of factual questions to constrain the

jury’s fresh look at the evidence. The jury was not

constrained by the Curley I opinion’s necessarily biased view

of the facts, and the jury was therefore free to consider the

entire set of facts facing Klem when determining whether

Klem’s conduct violated Curley’s constitutional rights.

33

Confusion between the threshold constitutional inquiry

and the immunity inquiry is also understandable given the

difficulty courts have had in elucidating the difference

between those two analytical steps.17 At the risk of

understating the challenges inherent in a qualified immunity

analysis, we think the most helpful approach is to consider the

constitutional question as being whether the officer made a

reasonable mistake of fact, while the qualified immunity

question is whether the officer was reasonably mistaken about

the state of the law.

With that in mind, we turn to the questions presented

to the jury in this case. The constitutional liability question

posed to the jury, Question Two on the verdict sheet, was

“Did Trooper Ron Klem act in an objectively reasonable

manner in shooting Officer Curley during the confrontation?”

Question Three, designed as the immunity question, was

posed as, “Was Trooper Ron Klem’s mistake in firing his

weapon objectively reasonable?” The difference between

those two questions is essentially semantic, the only

difference being that Question Three makes explicit what was

17

The Saucier opinion itself was generated by the

confusion inherent in such conceptually close questions. See

Saucier, 533 U.S. at 197 (“The matter we address is whether

the requisite analysis to determine qualified immunity is so

intertwined with the question whether the officer used

excessive force in making the arrest that qualified immunity

and constitutional violation issues should be treated as one

question, to be decided by the trier of fact.”).

34

already obvious and conceded in the case: that the shooting

was a mistake.

For practical purposes, then, the analysis of objective

reasonableness that the District Court undertook under the

rubric of an immunity question actually applies better to the

preliminary constitutional question. The immunity step of the

Saucier test is typically focused on established legal standards

and requires a review of relevant case law, a review a jury

simply cannot undertake. See Saucier, 533 U.S. at 205 (“The

concern of the immunity inquiry is to acknowledge that

reasonable mistakes can be made as to the legal constraints on

particular police conduct.”). However, the constitutional

analysis focuses on the factual circumstances of the incident

and asks whether the officer made a reasonable mistake of

fact. Question Three did exactly that. It asked not whether

Trooper Klem made a mistake of law – wrongly believing that

it was legal to shoot the wrong person – but whether it was

reasonable for him to make the factual mistake of believing

Officer Curley was the armed and dangerous Bailey.

Therefore, if the jury properly determined that Klem made an

objectively reasonable mistake when he shot Curley, then it

found that there was no constitutional violation, and the

District Court did not err in entering a verdict in favor of

35

Trooper Klem.18 We turn now to that question of the

sufficiency of the evidence.

C. The Jury’s Verdict is Supported by the Evidence

The jury’s verdict on the objective reasonableness of

Trooper Klem’s actions is well supported by the record.

There are many facts that the jury was entitled to rely on that

were not in dispute, including Bailey’s behavior prior to and

during the high speed car chase that led to the George

Washington Bridge. Bailey had shot and killed a police

officer, had shot at another officer, had stolen a police car,

had then carjacked the Camry from a rest stop on the New

Jersey Turnpike, had launched a high speed chase on the

Turnpike and, during that chase, had fired shots at Klem and

other officers, wounding an officer and hitting Klem’s

windshield. Furthermore, whether or not Klem knew exactly

what had occurred, no one disputes that he came on the scene

in the immediate aftermath of Bailey’s creating additional

havoc by crashing into the Pathfinder. In short, no one

18

The fact that the District Court relied on Question Three

as answering the qualified immunity question and entered a

verdict based on Trooper Klem deserving qualified immunity

is not reversible error. Because Trooper Klem was entitled to

a verdict in his favor either if there was no constitutional

violation or if he was entitled to qualified immunity, the error

in the District Court’s analysis was harmless. Hill v. Laisz,

435 F.3d 404, 411 (3d Cir. 2006) (holding that error is

harmless where it is “highly probable” that the error did not

affect the outcome of the case).

36

disputes that Bailey was actively evading arrest after

committing several severe crimes, that he posed a serious

danger to both the police and public, and that Klem could

properly approach the scene prepared to use deadly force. In

fact, Curley himself did so. He testified that, when he began

to approach the Camry, his gun was drawn.

The very real danger that both Curley and Klem

perceived at the toll plaza was intensified by the presence of

numerous innocent bystanders. Curley’s solicitude for the

safety of the driver of the Pathfinder is not just commendable;

it reflects the well-founded fear that people who got out of

their cars were in danger of being shot. Added to all of this is

the jury’s finding that, when Klem approached the wrecked

Camry, he saw a toll booth attendant signaling him to look to

the middle of the toll plaza. That is where Curley was

standing with a gun in his hands.

In Curley’s view, none of those facts is of any moment,

since Klem’s failure to look into the Camry is dispositive.

According to Curley, had Klem looked, he would have seen

Bailey’s dead body and there would have been no

confrontation.19 However, as we have stated several times,

19

This, of course, is the dissent’s view as well, post at 11-

12, and we do not suggest that this is illogical, only that it is

not the exclusively logical view. We stated in Curley I that

Klem knew there was only one suspect and, “had Klem

known of Bailey’s suicide, it would have been clearly

unreasonable for him later to confuse Curley with the

suspect.” 298 F.3d at 281. Hence, the question of whether

37

the reasonableness of Klem’s conduct must be examined

based on the totality of the circumstances, and the inquiry

cannot be collapsed into a single instant, particularly not

when, at that instant, Klem’s vision was being drawn by the

toll booth attendant toward Curley, standing in the plaza with

a gun.20 Thus, when we examine all of the facts and

circumstances, the jury’s verdict that Klem acted reasonably

is supported by the evidence.

Klem looked in the Camry is highly relevant. But it is not

outcome determinative. We did not equate looking in the

Camry with knowledge of Bailey’s death, since it was

conceivable that a factfinder could have decided that an

objectively reasonable officer could look in the Camry and

still not see Bailey, no matter how obvious the body might

have been to others not in that officer’s unique position. It

was also conceivable that a factfinder could conclude, as the

jury apparently did, that despite Klem’s overlooking

information that could have enlightened him about the

suicide, his actions in totality and under the pressure of the

moment were such that his failure to look in the car did not

make the shooting objectively unreasonable.

20

The jury’s conclusion that Klem’s failure to look into the

Camry was unreasonable is not beyond dispute. Given all

else that had occurred and was occurring, it can be argued that

looking at the gesticulating toll booth attendant, rather than

into the car, may not have been the most reasonable action but

was still within the bounds of reason. However, since we are

upholding the verdict on other grounds, we do not address

that issue.

38

The mistake Klem made has undoubtedly been terrible

in its long-term consequences for Officer Curley and his

family, and we do not for a moment discount the pain, sorrow,

expense, and frustration that it has visited on them in their

innocence. But a mistake, though it may be terrible in its

effects, is not always the equivalent of a constitutional

violation. In Curley I, we acknowledged “the great pressure

and intensity inherent in a police officer’s hot pursuit of a

suspect known to be armed and highly dangerous ... .” 298

F.3d at 280. That would amount to little more than lip

service, were we to reverse the jury’s verdict and the District

Court’s thoughtful decision on the post-trial motions.

“[P]olice 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.” Graham, 490 U.S. at 397. Those

were the circumstances facing both Trooper Klem and Officer

Curley at the George Washington Bridge toll plaza. Viewed

from that perspective, Saucier, 533 U.S. at 205, the seizure

effected by the mistaken shooting was not unreasonable under

the Fourth Amendment. It therefore was not a constitutional

violation.

V.

For the foregoing reasons, we will affirm the judgment

of the District Court on the ground that no constitutional

violation occurred.

CURLEY v. KLEM (“Curley II”)

39

No. 05-4701

ROTH, Circuit Judge, dissenting:

The jury’s findings make clear that, were it not for

Trooper Klem’s unreasonable actions, the tragic shooting of

Officer Curley would never have occurred. In the special

interrogatories, the jury found that the sole perpetrator was dead

and visibly sprawled across the passenger seat of the Camry at

the time Klem approached it, and that Klem came within an

arm’s length of the Camry’s passenger side window, yet failed

to look into the car to check for the perpetrator’s body. Klem

admitted at trial that, had he looked into the Camry and seen the

perpetrator lying there, Klem would not have confronted and

shot Curley. Klem would have holstered or lowered his gun,

thus breaking the chain reaction of events leading to the

shooting, and Curley would have walked away unharmed. In

Question 1 of the liability verdict sheet, the jury had to decide

whether Klem’s failure to break the chain reaction – by failing

to look into the Camry – was an objectively reasonable mistake

of fact, in light of the totality of the circumstances. The jury

concluded that it was not.

Based on these facts, I cannot agree with the majority’s

conclusion that the jury returned a verdict for Klem. The exact

opposite is true. The jury answered Question 1 in favor of

Curley, which established a constitutional violation. Although

the jury answered Question 3 in favor of Klem, this question

should never have been posed, as it asked the ultimate question

40

of qualified immunity and encompassed purely legal issues

reserved exclusively for the court. The majority concedes that

such a question is outside the province of the jury, and our prior

precedents, including our prior decision in this case, have never

stated otherwise. Therefore, in order to justify its decision to

affirm, the majority takes a revisionist view of history and

refashions Question 3 into a factual, rather than legal, question.

The majority does so notwithstanding the fact that the language

and structure of the verdict sheet and the understanding of the

District Court and the parties clearly demonstrate that Question

3 was an improper legal question.

For these reasons and those that follow, I respectfully

dissent. Question 3 should be stricken, the judgment for Klem

should be vacated, and this case should be remanded in order to

permit the District Court, rather than the jury, to resolve the

ultimate question of qualified immunity. If the District Court

were to conclude that immunity is not warranted under clearly

established law, judgment should be entered in favor of Curley

and the case should proceed to a damages determination.

I. BACKGROUND

In Curley v. Klem, 298 F.3d 271 (3d Cir. 2002) (“Curley

I”), we reversed the summary judgment for Klem on Curley’s

excessive force claim because the District Court failed to

“recognize the existence of disputed historical facts that are

clearly material to the question of objective reasonableness.” Id.

at 281. Specifically, we identified a series of disputed facts

relating to “two key events – the inspection of the suspect’s

vehicle and the actual confrontation between Klem and Curley.”

41

Id. We discussed each event in detail, under separate topic

headings entitled “The Body in the Camry” and “The

Confrontation,” id. at 281-282, and noted their sequential

relationship to one another:

When Klem arrived at the toll plaza, he was unaware that

his suspect had just shot and killed himself while sitting

inside the stolen Camry. But it is uncontroverted that

Klem knew there was only one perpetrator. Thus, had

Klem known of Bailey’s suicide, it would have been

clearly unreasonable for him later to confuse Curley with

the suspect. Assuming that a reasonable officer in

Klem’s position would have looked inside the Camry

upon arriving at the scene, a key issue becomes whether

Klem did, in fact, look inside the Camry’s window.

Id. at 281 (emphasis added). We noted that, while qualified

immunity is supposed to act as immunity from suit, not just

liability, “the reality [is] that factual disputes often need to be

resolved before determining whether the defendant’s conduct

violated a clearly established constitutional right.” Id. at 278.

We noted that “[a] judge may use special jury interrogatories,

for instance, to permit the jury to resolve the disputed facts upon

which the court can then determine, as a matter of law, the

ultimate question of qualified immunity.” Id. at 279. Our

analysis was colored by the Supreme Court’s directive, in

Saucier v. Katz, 533 U.S. 194 (2001), that Fourth Amendment

qualified immunity analysis “must be undertaken in light of the

specific context of the case, not as a broad general proposition.”

Id. at 201 (emphasis added).

42

In accordance with our directives in Curley I, the District

Court submitted a series of special interrogatories to the jury at

the conclusion of trial. These 10 interrogatories were derived

from the material fact disputes we had identified in our decision

in Curley I. Five interrogatories sought to resolve fact disputes

relating to the extent of Klem’s inspection of the Camry. All of

these interrogatories were answered in favor of Curley in that

they tended to demonstrate that Klem had acted unreasonably by

failing to look into the Camry, where he would have seen the

perpetrator’s dead body.21 The other five interrogatories

addressed Klem’s subsequent confrontation with Curley –

21

These interrogatories are as follows. Interrogatory 1

asked: “At the time Trooper Klem approached the Camry,

was the perpetrator’s body on the front seat of the car?” The

jury answered: “Yes.” Interrogatory 2 asked: “At the time

Trooper Klem approached the Camry, was the perpetrator’s

body on the passenger side floor of the car?” The jury

answered: “No.” Interrogatory 3 asked: “When Trooper Ron

Klem was within about an arm’s length from the passenger

side window of the Camry, did he look into the window of the

Camry to see if the perpetrator was in the car?” The jury

answered: “No.” Interrogatory 4 asked: “Regardless of

where the perpetrator’s body was located in the Camry,

should it have been visible to someone looking in the

passenger side window from where Trooper Klem was

positioned?” The jury answered: “Yes.” Interrogatory 5

asked: “Did Trooper Ron Klem make an objectively

reasonable effort to observe into the Camry to determine if the

perpetrator was inside the Camry?” The jury answered:

“No.”

43

which, by Klem’s own admission, never would have happened

had Klem acted reasonably by looking into the Camry. Two of

these interrogatories were answered in favor of Curley (in that

they tended to demonstrate that Klem confronted Curley in an

unreasonable manner),22 one interrogatory was answered in

favor of Klem (in that it tended to demonstrate that Klem had

acted reasonably),23 and two interrogatories were left

unanswered due to the jury’s failure to reach a unanimous

decision on them.24

22

These interrogatories are as follows. Interrogatory 7

asked: “Did Officer Curley raise his gun to point directly at

Trooper Ron Klem several times during “the confrontation?”

The jury answered: “No.” Interrogatory 8 asked: “At the

time Officer Curley was shot, was Officer Curley’s gun

coming up to aim at Trooper Ron Klem?” The jury answered:

“No.”

23

This interrogatory, Interrogatory 6, asked: “Was it

objectively reasonable for Trooper Ron Klem to believe that

toll collector Jenkins signaled to him with an arm motion

towards the east side center of the plaza?” The jury

answered: “Yes.”

24

These interrogatories are as follows. Interrogatory 9

asked: “Was Officer Curley’s uniform visible as a police

uniform from the position where Trooper Ron Klem was

standing?” Interrogatory 10 asked: “Was it objectively

reasonable for Trooper Ron Klem to believe that the

individual he observed holding a weapon was wearing civilian

clothing?”

44

The District Court also submitted to the jury a separate

“Liability Verdict Sheet” premised on and guided by our

discussion in Curley I. Although the majority opinion

reproduces the four liability questions in full, the majority fails

to include the instructions that accompanied these questions.

Because these instructions are critical to understanding the

meaning of the questions themselves, I set forth the verdict sheet

in its entirety, as returned by the jury, below:

LIABILITY VERDICT SHEET

After you have finished answering the written

interrogatories, please proceed to liability, and, if

appropriate, damage questions.

1. Did Trooper Ron Klem’s failure to act in an

objectively reasonable manner in observing the

Camry prevent him from seeing the

perpetrator’s body in the Camry?

X Yes No

2. Did Trooper Ron Klem act in an objectively

reasonable manner in shooting Officer Curley

during the confrontation?

X Yes No

If you answered Yes to Question 1 and/or No to

Question 2, proceed to Question 3.

45

If you answered No to Question 1 and also Yes to

Question 2, then go no further. Stop deliberating

and inform the attendant that you have reached

the verdict. If not, proceed to Question 3.

3. Was Trooper Ron Klem’s mistake in firing his

weapon objectively reasonable?

X Yes No

If you answered No to Question 3, then proceed

to Question 4.

If you answered Yes to Question 3 then proceed

no further. Stop deliberating and inform the

attendant that you have reached a verdict.

4. Did the plaintiff suffer damages that were

proximately caused by Trooper Ron Klem’s

conduct?

Yes No

If you answered Yes to Question 4 you must

proceed to the Damages Verdict Sheet.

If you answered No to Question 4, proceed no

further. Stop deliberating and inform the

attendant that you have reached a verdict.

46

There is certainly some ambiguity in the verdict sheet.

However, as I will discuss below, I believe it is clear that – in

light of the special interrogatories, the verdict sheet instructions,

and other record evidence – Questions 1 and 2 represented

alternate theories of liability, and Question 3 represented the

ultimate qualified immunity question. Although Questions 1

and 2 were more or less in accordance with our directives in

Curley I, Question 3 was not – and it never should have been

included on the verdict sheet.

Upon receiving the jury’s answer to Question 3, the

District Court promptly entered judgment for Klem on that

basis, without any further analysis, in a two-page judgment

order. See 9/29/05 Order. In its post-trial opinion, the District

Court made clear that the issue of qualified immunity was out of

its hands and had been delegated to the jury in Question 3:

“Question 3 properly asks the jurors to make the finding that is

inherent in the remand, and in answering it as they did,

unanimously, this jury decided the issue of qualified immunity

in Trooper Klem’s favor.” Curley v. Klem, No. 98-5256, 2006

WL 414093, at *5 (D.N.J. Feb. 21, 2006) (emphasis added). By

entering judgment for Klem on the basis of Question 3, the

District Court disregarded the jury’s answers to the special

interrogatories, overrode the jury’s finding of liability in

Question 1, and improperly delegated the ultimate question of

qualified immunity to the jury.

II. DISCUSSION

First, I will explain why Questions 1 and 2 were alternate

theories of liability. Second, I will explain why Question 3

47

asked the ultimate question of qualified immunity, and thus

should be stricken. Third, I will explain how the District Court

should have handled the issue of qualified immunity.

A. Questions 1 & 2

It is self-evident that Klem shot the wrong man. That

mistake alone, however, does not establish a Fourth Amendment

violation for unreasonable seizure. Rather, what must be shown

is that the facts of the case rendered it objectively unreasonable

for Klem to mistake Curley for the fleeing perpetrator and then

use deadly force to seize him. As we noted in Curley I, there are

at least two ways in which the jury could have found the

mistaken identification and corresponding shooting to be

objectively unreasonable. First, the jury could have concluded

that Klem acted unreasonably by failing to check the Camry for

the perpetrator’s body, which directly led to the mistaken

identification and shooting. Indeed, we explicitly stated in

Curley I that, “had Klem known of Bailey’s suicide, it would

have been clearly unreasonable for him later to confuse Curley

with the suspect.” 298 F.3d at 281. Second, even if Klem had

acted reasonably in failing to check the Camry, the jury could

still find that Klem acted unreasonably in mistaking Curley for

the perpetrator during the subsequent confrontation depending

on the circumstances of that event. Id. at 282.

Although these two theories were not the only potential

avenues for liability, they were the focus of our opinion in

Curley I and influenced the District Court’s decision to place

Questions 1 and 2 on the verdict sheet as alternative theories of

liability. The trial record reflects that the parties and the District

48

Court understood and intended Questions 1 and 2 to be alternate

liability questions. This understanding was in line with the

verdict sheet instructions directing the jury to proceed to

Question 3 “[i]f you answered Yes to Question 1 and/or No to

Question 2” (emphasis added). The fact that an answer for

Curley on either Question 1 or 2 warranted consideration of

Question 3 suggests that Questions 1 and 2 were in fact alternate

and independent liability questions. They had to be, because an

answer for Curley on either question took the jury to the same

place. Questions 1 and 2 operated independently and a finding

for Curley on either one was sufficient to establish a

constitutional violation.

Klem argues that Question 1 was actually a special

interrogatory, as opposed to an independent liability question.

This argument makes little sense in light of the fact that all other

special interrogatories were placed on a separate sheet entitled

“Special Interrogatories” and Question 1 appeared on the

“Liability Verdict Sheet.” Klem also argues that the District

Court would have included instructions to skip Question 2 upon

a finding in favor of Curley on Question 1 if those two questions

were actually alternate and independent theories of liability.

This argument seems plausible at first blush, but Curley rightly

points out that it was sensible for the District Court to instruct

the jury to answer both questions, despite being independent of

one another, in case this Court were to invalidate one of the two

theories of liability on appellate review – a reasonable concern

given the complexity and history of this case. Finally, Klem

argues that our comment in Curley I that “a key issue” – as

opposed to the key issue – was “whether Klem did, in fact, look

inside the Camry’s window,” id. at 281, shows that it is

49

impossible for Question 1 to be outcome-determinative. This

argument falls short because it fails to appreciate the fact that

identifying a proximate cause of an injury can be outcome-

determinative even if it is not the only proximate cause of that

injury.

With regard to this last argument, the majority adopts a

somewhat similar view by arguing that one event – the

unreasonable failure to inspect the Camry – cannot alone

support liability because the totality of the circumstances must

be considered. I do not dispute that the totality of the

circumstances must be considered and I fully agree that “[a]ll of

the events leading up to the pursuit of the suspect are relevant.”

Carswell v. Borough of Homestead, 381 F.3d 235, 243 (3d Cir.

1999) (citing Abraham v. Raso, 183 F.3d 279, 292 (3d Cir.

1999)). Indeed, the jury was instructed to consider the totality

of the circumstances,25 and did so in answering Question 1.

Application of the totality of the circumstances standard,

however, does not make it impossible for one particular

circumstance to be outcome-determinative, as it was here,

because it is entirely possible that some circumstances are more

important that others. See Abraham, 183 F.3d at 292

(disagreeing with the proposition that “all preceding events are

equally important” in a similar Fourth Amendment case). We

highlighted this fact in Curley I when we explained that Klem’s

25

In its charge to the jury, the District Court stated that

“[a]ll of the events leading up to the pursuit of the suspect are

relevant,” apparently quoting Carswell verbatim. App. at

T1166.

50

unreasonable failure to look into the Camry would be important

enough to render his misidentification and shooting of Curley

immediately thereafter unreasonable; in other words, the first

unreasonable act would necessarily carryover and render the

second act unreasonable as well. See Curley I, 298 F.3d at 281.

This is so because the high-speed chase was composed of

a sequence of events forming a chain reaction, like a row of

falling dominoes. One event caused the next event which

caused the next. Had Klem looked into the Camry for the sole

perpetrator – which is what the jury concluded an objectively

reasonable police officer would have done in light of the

circumstances26 – a key domino would have been removed and

the chase would have come to an end. Indeed, Klem admitted

at trial that, had he seen the perpetrator in the Camry, he never

would have shot Curley. App. at T1016. Klem’s admission

negates any suggestion that, even if he knew of the perpetrator’s

death, Curley’s subsequent approach with a gun might have

26

In Curley I, we “[a]ssum[ed] that a reasonable officer in

Klem’s position would have looked inside the Camry upon

arriving at the scene.” 298 F.3d at 281. Our assumption was

borne out by the jury’s findings in Interrogatory 5 and

Question 1. In Interrogatory 5, the jury was asked, “Did

Trooper Ron Klem make an objectively reasonable effort to

observe into the Camry to determine if the perpetrator was

inside the Camry?,” and answered, “No.” In Question 1, the

jury was asked, “Did Trooper Ron Klem’s failure to act in an

objectively reasonable manner in observing the Camry

prevent him from seeing the perpetrator’s body in the

Camry?,” and answered, “Yes.”

51

nevertheless presented a new danger that would have warranted

the use of deadly force.

The District Court correctly instructed the jury: “The

question is whether, in the circumstances here, a reasonable

officer would not have made the mistake that Trooper Klem

made.” App. at T1166-67. By concluding, in Question 1, that

a reasonable officer would have looked in the Camry – where,

according to the jury’s findings in the special interrogatories,

Bailey was lying in plain view – the jury answered the

dispositive question of liability in favor of Curley. For Klem’s

shooting of Curley to have been reasonable, Klem’s

misidentification of Curley must have been reasonable as well.

The jury concluded that Klem’s misidentification was not

reasonable. Therefore, the shooting could not have been

reasonable.27 It is this simple syllogism, premised upon the law

27

This is so notwithstanding the jury’s answer to Question

2, which, as discussed above, was answered in case this Court

were to invalidate Question 1. The shooting during the

confrontation was unreasonable by necessity – due to the

sequential nature of the events – once the jury concluded that

it was unreasonable for Klem not to look into the car. The

unreasonableness of Klem’s failure to look into the Camry

carried over and rendered Klem’s misidentification during the

confrontation unreasonable as well. This “carry over” effect

can be understood with a hypothetical. If, during a high-

speed car chase, an officer unreasonably turned off his police

radio and therefore did not hear that the perpetrator being

pursued had been stopped, by necessity it would be

unreasonable if the officer then rammed an innocent driver,

52

of the case as set forth in Curley I, see In re City of Phila. Litig.,

158 F.3d 711, 722 (3d Cir. 1998) (applying law of the case

doctrine in a similar Fourth Amendment case), that the majority

fails to appreciate.

For these reasons, I would conclude that, by answering

Question 1 in favor of Curley, the jury found that Klem had

committed a constitutional violation. In this case, proof of an

unreasonable action that directly causes a later action that might

otherwise be reasonable but nevertheless should not have

occurred should be enough to prove a violation.28 Having

concluded that the jury found a constitutional violation, I

wrongly identified as the feeling perpetrator, after the

unreasonable action of turning off the radio – an unreasonable

action directly responsible for the misidentification and

ramming of the innocent driver. Similarly, Klem’s

misidentification of Curley is unreasonable due to the

unreasonable action that directly preceded it – the failure to

look into the Camry – which directly caused the

misidentification and shooting to occur.

28

This is not to say that in all circumstances one

unreasonable action that occurs within a series of reasonable

actions necessarily establishes a violation. For example, if the

hypothetical officer discussed above, supra note 7, turned his

radio back on before any relevant information was

transmitted, the officer’s misidentification later would not

necessarily constitute a violation simply because of the

officer’s earlier unreasonable action of turning off his radio.

53

consider whether we should permit that finding to be negated by

Question 3.

B. Question 3

As I noted above, there is no dispute that Klem shot the

wrong man. Therefore, Questions 1 and 2 did not ask whether

Klem had made a mistake, since that was conceded; rather, they

asked whether Klem’s mistake was an objectively reasonable

one, for Fourth Amendment purposes, in light of the factual

circumstances at hand. That is, Questions 1 and 2 resolved step

one of the Saucier test concerning whether a constitutional

violation had occurred.

Since the jurors found a constitutional violation by

answering “Yes” to Question 1, they next considered Question

3, which asked, “Was Trooper Ron Klem’s mistake in firing his

weapon objectively reasonable?” The majority acknowledges

that “Question Three on the liability verdict sheet was evidently

intended to reach the question of qualified immunity,” i.e.,

Saucier step two, but nevertheless concludes that Question 3

“actually pertains to whether there was any constitutional

violation at all.” Maj. Slip Op. at 27. The majority’s conclusion

is unfounded because, as discussed above, the language and the

structure of the verdict sheet make clear that Questions 1 and 2

already asked whether a constitutional violation had occurred.

Under the majority’s reading, Question 3 is essentially

redundant. I believe the more logical reading is that Question 3

sought to resolve Saucier step two, i.e., the objective

reasonableness of a mistake of law, whereas Questions 1 and 2

54

resolved Saucier step one, i.e., the objective reasonableness of

a mistake of fact.29

As alluded to by the majority, my conclusion is in line

with the understanding of the parties and the District Court. In

its post-trial opinion, the District Court made clear that Question

3 asked the ultimate question of qualified immunity. The

District Court stated that “the litigants agreed to submit the

ultimate question of qualified immunity to the jury,”30 despite

29

That said, there is certainly some ambiguity in the

verdict sheet, in large part because “objective reasonableness”

is the standard by which a mistake of fact (or any decision

based on real or perceived facts) and a mistake of law (or any

decision based on a correct or incorrect understanding of the

law) must be judged in the context of a Fourth Amendment

case such as this one. See Maj. Slip Op. at 17-18 (noting that,

in a Fourth Amendment case, Saucier steps one and two

require an objective analysis of what is reasonable under the

facts and the law, respectively). Courts create confusion by

talking about “objective reasonableness” in the Fourth

Amendment context without specific reference to either

Saucier step one or two.

30

It should be noted, however, that Curley never agreed to

submit the qualified immunity question to the jury. The

record clearly reflects that Curley objected to the inclusion of

Question 3 on the verdict sheet prior to its submission to the

jury. Curley correctly noted that Question 3 asked about a

purely “legal matter” that “should not be a jury question.”

App. at T1062.

55

the fact that “there is Third Circuit law on the books that

indicates the trial judge, and not the jury, decides qualified

immunity.” Curley, 2006 WL 414093, at *1. Therefore, “the

jury would decide the issue of qualified immunity,” id. at *4,

“and in answering [Question 3] as they did, unanimously, this

jury decided the issue of qualified immunity in Trooper Klem’s

favor,” id. at *5. By interpreting Question 3 to apply to Saucier

step one, rather than step two, the majority is rewriting history.

Having concluded that Question 3 did, in fact, ask the

ultimate question of qualified immunity, I consider whether it

was permissible for the District Court to submit that question to

the jury. I have no trouble concluding that it was not. Although

the objective reasonableness of a mistake of fact is a question

that the jury may answer, the jury may never consider the

objective reasonableness of a mistake of law.31 See Carswell,

381 F.3d at 242 (“The court must make the ultimate

determination on the availability of qualified immunity as a

matter of law.”) (citing Curley I, 298 F.3d at 279 and Sharrar v.

Felsing, 128 F.3d 810, 828 (3d Cir. 1997)). The majority

agrees: “whether an officer made a reasonable mistake of law

and is thus entitled to qualified immunity is a question of law

that is properly answered by the court, not a jury.” Maj. Slip

Op. at 25. This was the law at the time of trial, and this is the

31

In this case, the mistake of fact was for Klem to think

that Curley was the fleeing perpetrator. The mistake of law, if

there was one, would have been for Klem to think that the

Fourth Amendment jurisprudence of the Supreme Court and

this Court permitted the use of deadly force in this situation,

when it did not.

56

law today. Although the jury may “determine[] disputed

historical facts material to the qualified immunity question,”

Carswell, 381 F.3d at 242, under no circumstances may the

court delegate the ultimate question of qualified immunity to the

jury, id., as was done in this case. Rather, the court should have

decided – based on the facts of the case, as clarified by the

special interrogatories – whether immunity was warranted under

the Fourth Amendment jurisprudence of the Supreme Court and

this Court.

The majority suggests that our decision in Curley I left

open the possibility of giving the ultimate question of qualified

immunity to the jury. The majority points out that we stated in

that case “that a jury can evaluate objective reasonableness

when relevant factual issues are in dispute.” Maj. Slip Op. at 25

(quoting Curley I, 298 F.3d at 279). I disagree with the

majority’s interpretation of Curley I. To the extent we were

permitting juries to consider the question of “objective

reasonableness,” we were referring to the objective

reasonableness of one’s view of the facts (i.e., Saucier step one,

which asks whether a violation occurred), as opposed to the

objective reasonableness of one’s view of the law (i.e., Saucier

step two, which asks whether a right was clearly established

under the case law). See supra note 9. Indeed, we made clear

the respective roles of the judge and jury in cases such as this

one: “A jury must resolve these [fact] issues before a court can

determine whether it would have been clear to a reasonable

officer that Klem’s conduct was unlawful.” Curley I, 298 F.3d

at 283.

57

The majority also suggests that our decisions in Sharrar

and Karnes v. Skrutski, 62 F.3d 485 (3d Cir. 1995), both Fourth

Amendment cases, demonstrate that “[w]e had previously

permitted the jury to answer the key immunity question of

whether the challenged behavior of a government official was

objectively reasonable.” Maj. Slip Op. at 22. Although Sharrar

and Karnes are not controlling in light of our subsequent cases,

such as Carswell and Curley I, it is important to note that the

majority’s suggestion concerning our supposedly “evolv[ing]”

precedents, Maj. Slip Op. at 22, is not accurate and is the result

of a misreading of Sharrar and Karnes that resembles the

majority’s misreading of Curley I. In each instance, the majority

improperly assumes that a jury empowered to address the

objective reasonableness of one’s view of the facts may also

address the objective reasonableness of one’s view of the law.

That is not the case and never has been. We have never said that

the qualified immunity question concerning the objective

reasonableness of an officer’s view of the law may be submitted

to the jury. “Objective reasonableness” can be a jury issue to

the extent it applies to the question of whether, as a factual

matter, a violation was committed. However, “objective

reasonableness” is most definitely not a jury issue to the extent

it applies to the question of whether, as a legal matter, a right

was clearly established. Whether a right was clearly established

is the “key immunity question”; we have never permitted a jury

to answer that question. Indeed, we never would have said so

because determining whether a right is clearly established –

which requires a review of the applicable case law – is clearly

outside the expertise of the jury. There is simply nothing in

Sharrar or Karnes that permits submission of the ultimate

58

question of qualified immunity, i.e., Saucier step two, to the

jury.32

32

For example, in Sharrar, we held “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 . . . will there be an issue for the

jury.” 128 F.3d at 828 (emphasis added). Therefore, we

made clear that consideration of Saucier step two is

exclusively reserved for the court. (Consequently, I believe

the majority misstates the law by saying that, “in a line of

cases beginning with Doe v. Groody, we began highlighting

that ‘qualified immunity is an objective question to be

decided by the court as a matter of law.’” Maj. Slip Op. at 23

(citation omitted). This basic proposition cited by the

majority was well-established before Doe; it was previously

set forth in Bartholomew v. Pennsylvania, 221 F.3d 425, 428

(3d Cir. 2000), where we actually cited Sharrar, 128 F.3d at

828 for support.) We went on to find no reversible error

where the jury decided the objective reasonableness of what

was essentially a mistake of fact, i.e., one officer’s mistaken

belief that an accompanying officer had obtained a warrant.

Id. at 830-31. In Karnes, we made the unremarkable

statement that, “[w]hile the qualified immunity defense is

frequently determined by courts as a matter of law, a jury

should decide disputed factual issues relevant to that

determination.” 62 F.3d at 491. We stopped short of saying

that a jury may answer the ultimate question of qualified

immunity, and we remanded for jury resolution of disputed

59

As previously noted, supra note 9, any ambiguity in our

precedents exists because “objective reasonableness” is the

standard by which mistake of facts and mistakes of law are to be

judged in the context of the Fourth Amendment’s prohibition of

unreasonable searches and seizures. Courts, including this one,

create confusion by talking about “objective reasonableness” in

the Fourth Amendment context without specific reference to

either Saucier step one or two. The use of the term “objective

reasonableness” without reference to factual or legal

reasonableness is what has made this area of the law so

confusing and it is why our precedents appear at times to say

contradictory things with regard to the respective roles of judge

and jury in determining objective reasonableness.

I will try to clarify matters. If there are no disputed

material facts, the court must determine the objective

reasonableness of a mistake of fact (here, whether it was

objectively reasonable for Klem to mistake Curley for the

perpetrator). However, if there are triable issues of material

fact, the jury must determine the objective reasonableness of

that mistake of fact. With regard to the objective reasonableness

of a mistake of law (here, whether it was objectively reasonable

for Klem to believe that the law permitted him to use of deadly

force against Curley in the situation at hand), the court should

always determine this issue, because doing so requires a review

of case law, which is not a task appropriate for the jury. (Of

course, this second Saucier step need not be reached if it is

established that no constitutional violation occurred. At that

issues of credibility related to qualified immunity, but not

qualified immunity itself. Id. at 499.

60

point, there is no violation, so there is no need for immunity

analysis.) If there are no disputed material facts, the court

should make this determination as soon as possible. However,

if factual disputes relevant to this legal analysis do exist, the

court will have to postpone making this determination until the

jury resolves all the relevant factual disputes, because

determining what actually happened is a prerequisite to

determining whether the law clearly established that a particular

action was permitted or prohibited by the Fourth Amendment

under those circumstances. See Saucier, 533 U.S. at 202 (noting

that step two asks “whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted”) (emphasis added). After the jury resolves these

relevant fact disputes, presumably through the use of special

interrogatories, see Curley I, 298 F.3d at 279 (suggesting this

method), the court is then capable of deciding whether or not the

law clearly permitted or prohibited the conduct constituting the

constitutional violation.

The District Court committed reversible error by

submitting the ultimate question of qualified immunity to the

jury by way of Question 3. Having so concluded, I next address

what the District Court should have done instead. In doing so,

I address what I believe to be the proper methods for handling

qualified immunity where material fact disputes preclude

resolution of that issue prior to trial.

C. Proper Methods

61

After answering one of the two alternate liability

questions in favor of Curley, the jury should have been

instructed to proceed to Question 4, concerning proximate

causation. The jury would have had to find that Klem’s

shooting of Curley caused Curley’s injuries, since the evidence

overwhelmingly reflected that fact and the issue was essentially

uncontested. Indeed, at the charging conference, counsel for

Klem agreed to place the proximate causation question

separately at the bottom of the verdict sheet, rather than

alongside each liability question, because causation was “not

really a contested issue in this case.” App. at T1061-62. Next,

the jurors should have been instructed to proceed to the separate

damages verdict sheet, where they would have had to decide on

dollar amounts that accurately reflected the economic and non-

economic losses suffered by Curley as a result of Klem’s

violation.

After receiving the jury’s verdict for Curley, the District

Court should have considered whether qualified immunity,

Saucier step two, nevertheless prevented judgment from being

entered against Klem. That would have been appropriate if the

Fourth Amendment jurisprudence of the Supreme Court and this

Court did not clearly establish that Klem’s conduct, in the

circumstances at hand, was unlawful. In other words, if Klem’s

conduct could have been the result of an objectively reasonable

but mistaken view of law, he should have been entitled to

qualified immunity.

In making the ultimate qualified immunity determination

for a Fourth Amendment case such as this one, the District

Court should have reviewed the answers to the special

62

interrogatories in order to determine what actually happened.

Then the District Court should have applied these findings to its

survey of the relevant case law in order to determine if it was

clearly established that a police officer was permitted to use

deadly force in circumstances similar to the instant case. Post-

trial briefing likely would have been helpful to the District Court

in this regard. If the District Court had concluded that Klem

was entitled to qualified immunity, judgment should have been

entered for Klem, notwithstanding the jury’s verdict. If the

District Court had made the opposite conclusion, judgment

should have been entered for Curley. Either way, the District

Court should have issued a written opinion explaining its

reasoning with regard to qualified immunity.

III. CONCLUSION

In my view, the District Court improperly delegated the

ultimate question of qualified immunity to the jury. I would

vacate the judgment for Klem and remand the case so that the

District Court can decide the question of qualified immunity in

the first place.33

33

However, I would not remand to a different judge, as

Curley requests, because there is little evidence, if any, of

judicial bias. Curley attempts to show bias by pointing to

several unremarkable rulings and remarks made by Judge

Hayden during the official proceedings of this case. This

Court has said, however, that such official judicial activity is

almost never sufficient to warrant recusal under 28 U.S.C. §

455. See United States v. Bertoli, 40 F.3d 1384, 1412 (3d Cir.

1994) (citing Liteky v. United States, 510 U.S. 540, 554

63

The District Court considered post-trial motions

regarding various issues, including potential inconsistencies in

the verdict, and in doing so conducted some analysis of the

special interrogatory answers. However, the District Court has

not considered qualified immunity anew based on the jury’s

answers to the special interrogatories and the relevant case law,

which is what I believe the law in the Circuit requires. If the

District Court were to conclude that Klem was not entitled to

qualified immunity, a trial would have to be held on the

damages issue, which never reached the jury. If, on the other

hand, the court were to conclude that Klem was entitled to

qualified immunity, then the court would have to set aside the

liability verdict as it had before.34

(1994)). In addition, a new trial in not required, as Curley

requests, for purported racial discrimination during juror

selection. The District Court correctly concluded that Curley

failed to make out a prima facie showing of racial

discrimination during voir dire under Batson v. Kentucky, 476

U.S. 79, 96 (1986) and United States v. Milan, 304 F.3d 273,

281 (3d Cir. 2002). In any case, Klem’s race-neutral

explanation for striking the juror at issue was adequate.

34

Although this Court might be able to conduct the

immunity analysis for the first time on appeal based on a

review of the law in light of the jury’s special interrogatory

answers, the District Court is in a better position to do so. For

example, the District Court, having sat through the trial and

being very familiar with the facts, is in a better position to

determine the meaning of answers to some of the more

ambiguous special interrogatory questions (such as

64

Although the outcome reached by the majority brings

closure to nine years of litigation in this difficult case, I do not

believe that this outcome is the correct one. In my view, the

majority’s decision is not faithful to its own opinion, Curley I,

or our other precedents, and thus should be modified as I have

proposed.

Interrogatory 7, see supra note 2), and to consider how they

apply to the Saucier step two analysis. That said, it would be

surprising if the District Court were to grant qualified

immunity in this situation given Klem’s admission in his

appellate brief that the issue in this case “is not whether there

was a misunderstanding of the law.” Klem Br. at 25; see also

Klem Br. at 2 (“This case, involving a ‘friendly fire’ shooting

as a result of mistaken identity, is one of the class of Fourth

Amendment and qualified immunity cases where the decisive

issue is whether a police officer has made a reasonable

mistake of fact in carrying out his duties.”) (emphasis added).

65