holding instruction that allowed jury to return verdict against § 1983 plaintiffs where warrantless home entries by police could be justified by exigent circumstances even in the absence of probable cause was not harmless error, even though jury’s verdict against plaintiffs might actually have been based on probable cause
How later courts described this case
- holding instruction that allowed jury to return verdict against § 1983 plaintiffs where warrantless home entries by police could be justified by exigent circumstances even in the absence of probable cause was not harmless error, even though jury’s verdict against plaintiffs might actually have been based on probable cause
- holding that in federal civil rights cases punitive damages may be awarded even without an award of compensatory damages
- observing that the Supreme Court “has been quite clear that [exceptions to the warrant requirement], based on ‘exigent circumstances,’ do not dispense with the requirement of probable cause”
- noting differences of opinion in the federal courts and holding only that doctrine of respondeat superior will not support an award of punitive damages
Written by the judges who cited it.
Distinguished
Distinguished by Conner v. Jeffes, 67 F.R.D. 86 (1975)
Davis, 8 Cir. 1973, 476 F.2d 1271, 1274; Johnson v. Glick, 2 Cir. 1973, 481 F.2d 1028; Adams v. Pate, 7 Cir. 1971, 445 F.2d 105; Dunham v. Crosby, 1 Cir. 1970, 435 F.2d 1177; Ammlung v. City of Chester, E.D.Pa.1973, 355 F.Supp. 1300, aff’d on other grounds, 3 Cir. 1974, 494 F.2d 811; Campbell v. Anderson, D.Del.1971, 335 F.Supp. 483; Hamilton v. Dalton, E.D.Pa.1971, 334 F.Supp. 794; cf. Fisher v. Volz, 3 Cir. 1974, 4…
The opinion
ALDISERT, Circuit Judge
(concurring and dissenting).
I join in all aspects of Judge ROSENN’S opinion except Part I A.
The district court is reversed for not following a rule which this court enunciates for the first time and which no trial court in this circuit was reqired to follow until today. Our brother Garth, who was the trial judge in this case, can now share in Learned Hand’s lament: “How may a judge anticipate a doctrine which may be in the womb of time, but whose birth is distant ?”
Nevertheless, it is the nature of our judicial system that trial courts often find themselves charged with reversible error for not applying legal precepts, which, refined on the appellate level for the first time, were not viable or operative at the time of trial. Before a trial judge should be charged with reversible error, however, I believe that the error should be plain or that there should be something in the record to indicate that the newly enunciated law of the case was both suggested by the losing party at trial and rejected by the court. I find neither specific request by counsel nor rejection by the court of the notion that the jury had to be instructed to find that the defendants had probable cause to believe the felon was in the premises before embarking upon a consideration of exigent circumstances. I cannot bring myself to call this plain error. The court did instruct the jury to consider the felon’s presence on the premises; the court is faulted only for not using the imperative mood in its instructions on this issue.
Appellant’s basic position at trial was simple and forthright. She argued that there was no probable cause as a matter of law, that the police search was unlawful, that her constitutional rights had been infringed, and that she was entitled to damages as a matter of law. The district court rejected this contention. The majority affirms the trial court on this point in I B, and I agree. But plaintiff Bass had an alternative to her basic position and requested the following charge:
5. [Requested only if the lawfulness of the search is held to be a jury matter and if the Court, over objections of the plaintiffs, persists in its view that this case is governed by Dorman v. United States, [ 140 U.S.App.D.C. 313 ] 435 F.2d 385 (D.C.Cir., 1970) ]
A search of a home without a warrant is lawful only in exigent circumstances and it is for the police to bear the burden of proving these factors. Such circumstances exist only when a grave offense is involved, the suspect is reasonably believed to be armed, there is clearly probable cause that he committed the crime, and a strong reason to believe that he is on the premises, there exists a likelihood that the suspect will escape if not swiftly apprehended, the entry can be made peacefully, and it was not possible to accept the delay of getting a sear.eh warrant. Dorman v. United States, [ 140 U.S.App.D.C. 313 ], 435 F.2d 385, 392-393 (1970).
While it may be argued with some persuasion that the text of appellants’ request carries with it an implication of a mandatory threshold finding of “strong reason to believe that he is on the premises,” the fact that this requested instruction was accompanied with a reference to Dorman v. United States, 140 U.S.App.D.C. 313 , 435 F.2d 385, 392-393 (1970), can also be interpreted as a request to the court to instruct in *351 specific accordance with the factors set forth on pages 392 and 393 of that case; which is precisely what the trial court did.
The purpose of Rule 51 F.R.C.P. is to prevent “sandbagging” a trial judge. Counsel is to make a specific request or a specific objection so that the court will have the opportunity of taking corrective action at trial. A careful examination of the record persuades me that the point on which Judge Garth is reversed today was not called to his attention at trial, is the product of original enunciation in this court today, is not plain error, and should not be the basis of reversal.