                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-20-2004

Carswell v. Homestead
Precedential or Non-Precedential: Precedential

Docket No. 03-2290




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                     PRECEDENTIAL            Before: NYGAARD, McKEE, and
                                            WEIS, Circuit Judges.
   UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT                     Filed : August 20, 2004
                                                        _____________

             No. 03-2290                    Charles E. Evans, Esquire (ARGUED)
                                            Evans, Portnoy, Quinn & O’Connor
                                            36 th Floor, One Oxford Centre
TONYA L. CARSWELL, Administratrix           301 Grant Street
of the Estate of GILBERT CARSWELL,          Pittsburgh, PA 15219-6401
deceased, on behalf of the Estate of
GILBERT CARSWELL, deceased and              Attorneys for Appellant
TONYA L. CARSWELL, Administratrix
of the Estate of GILBERT CARSWELL,          David J. MacMain, Esquire (ARGUED)
deceased on behalf of the NEXT OF KIN       Montgomery, McCracken, Walker &
of GILBERT CARSWELL, deceased,              Rhoads, LLP
                                            123 South Broad Street
                Appellant                   Philadelphia, PA 19109-1090

                v.                          Attorneys for Appellee Frank Snyder

BOROUGH OF HOMESTEAD; MARK                  Paul D. Krepps, Esquire (ARGUED)
ZUGER, CHIEF OF POLICE OF THE               Audrey J. Copeland, Esquire
BOROUGH OF HOMESTEAD;                       Marshall, Dennehey, Warner, Coleman
FRANK SNYDER                                and Goggin
                                            18 Campus Blvd., Suite 250
                                            Newtown Square, PA 19070
            ____________
                                            Attorneys for Appellees Borough of
 APPEAL FROM THE UNITED                     Homestead and Police Chief Mark Zuger
STATES DISTRICT COURT FOR
     THE WESTERN DISTRICT                               ____________
         OF PENNSYLVANIA
     (D.C. Civ. No. 00-cv-01184 )                         OPINION
  District Judge: Honorable Robert J.
Cindrich
             ____________
                                            WEIS, Circuit Judge.
         Argued May 11, 2004

                                        1
        In suits under 42 U.S.C. § 1983 for           court for a protection from abuse order
damages against government officials for              (“PFA”) 1 because her husband presented
violation of constitutional rights, the               “an immediate and present danger of
Supreme Court recommends that the                     abuse” to her and their children. Soon
courts rule on the constitutional issue               afterward, the Homestead Police went to
before reaching qualified immunity. In
this case, after hearing all of the plaintiff’s
evidence at trial, the District Court                               1
                                                                     Under the Pennsylvania
assumed, but did not decide whether a
                                                      Protection from Abuse Act, a plaintiff
constitutional violation had occurred and
                                                      may obtain a PFA by (1) agreement with
then granted immunity to a police officer.
                                                      the defendant, (2) obtaining a default
In the circumstances of this case, we
                                                      judgment or (3) proving the allegation of
conclude that this procedure was not
                                                      abuse by a preponderance of the
reversible error and we will affirm on the
                                                      evidence at a hearing. See 23 Pa. Cons.
merits of the immunity ruling.
                                                      Stat. Ann. § 6107 (West 2001); 23 Pa.
        Gilbert Carswell, the plaintiff’s             Cons. Stat. Ann. § 6108 (West 2004). At
husband, was fatally shot by a Homestead              a minimum, a plaintiff must have a
Borough patrolman in the course of                    reasonable fear of bodily injury to obtain
apprehension by the police. Plaintiff                 a PFA. See 23 Pa. Cons. Stat. Ann. §
brought suit pursuant to 42 U.S.C. § 1983             6102 (West 2001). One of the typical
alleging that her husband’s death was the             hallmarks of a PFA is the prohibition on
result of constitutional violations by                contact between the plaintiff and
Officer Frank Snyder, Police Chief Mark               defendant. 23 Pa. Cons. Stat. Ann. §
Zuger, and the Borough of Homestead.                  6108(a)(6).
The District Court declined to grant
qualified immunity on summary judgment,                              The statute requires the
reasoning that factual disputes existed at            court to issue a PFA to the police
that time. At trial, after the plaintiff had          department with appropriate jurisdiction
rested at the end of her case, the District           to enforce the order, as well as the state
Court granted judgment to the defendants              police. Police officers may arrest a
as a matter of law pursuant to Fed. R. Civ.           defendant for violating a PFA without a
P. 50.                                                warrant upon probable cause, whether or
                                                      not the violation occurred in their
       The tragic death of Gilbert Carswell
                                                      presence. 23 Pa. Cons. Stat. Ann. §
was the culmination of months of domestic
                                                      6113(a) (West 2001). A defendant who
discord. After three and one-half years of
                                                      violates a PFA and is convicted of
marriage, plaintiff and the decedent-
                                                      indirect criminal contempt is subject to
husband became estranged. In July 1999,
                                                      imprisonment of up to six months. 23
some four months before the shooting
                                                      Pa. Cons. Stat. Ann. § 6114 (b) (West
occurred, the plaintiff applied to the state
                                                      2001).

                                                  2
the family residence when the husband,            because of concern that the husband would
despite the PFA, came to the home and             return.
punched the plaintiff.
                                                          After the fourth entry which
       On July 27, 1999, plaintiff applied        occurred at 12:40 a.m., the police again
for a second PFA, asserting that her              responded, but the husband escaped. To
husband had ripped the telephone from the         protect plaintiff, Officer Shipley remained
wall, broken a table, threatened to hit her       in the home, as he had earlier, while other
and sexually assaulted her. In early              officers set up a perimeter in the area.
August, the police were called to the home
                                                          The husband was spotted at 2:10
when the husband struck the plaintiff in
                                                  a.m. by a police officer who radioed the
the face with his fist.
                                                  information to the law enforcement
        The plaintiff filed an indirect           personnel in the area. Two other officers,
criminal complaint on October 10, 1999            responding to the alert, cornered the
because her husband threatened to kick her        husband on the porch of a home nearby.
and pistol-whip her brother. One week             One of the policemen drew his gun,
later, the police were summoned because           confronted the husband, and ordered him
the husband had once again violated the           to lie on the floor. He raised his hands in
PFA.      In evading apprehension, he             a surrender gesture, but then suddenly
rammed a police car. As a consequence, a          jumped over the porch railing and ran into
felony warrant was issued for his arrest.         the darkness.
       On the evening of November 17                      On hearing that the husband had
and the early morning hours of November           been sighted, Officer Shipley left the
18, 1999, the husband entered the home on         family home and joined in the pursuit. He
four separate occasions. He broke a               was standing in Boone Way, a narrow
window to gain admittance, ransacked the          alley, when he saw the husband jump from
kitchen, and smashed the television set.          the roof of a garage on the south side of
On each occasion, the police came to the          the roadway. The husband then ran in a
scene, but were unsuccessful in attempts to       westerly direction with Shipley in pursuit.
capture him.
                                                         At this point, defendant Snyder
       After the second incident, plaintiff       turned his police car into Boone Way from
and a teenage girl, who was staying at the        an intersecting street west of the garage.
house, armed themselves with butcher              He saw the husband some 20-30 feet away,
knives. After the third entry, a patrolman        running toward the cruiser.           Snyder
remained in the house for an hour to              stopped his car somewhat diagonally
provide security for the plaintiff.               across the alley and got out on the left side,
Moreover, the police decided that their           leaving the door open. The headlights were
previous shift would remain on duty               on as were the lights in the cruiser’s
together with the oncoming officers               overhead bracket directed toward each side

                                              3
of the alley.                                     he would not have pulled his gun from the
                                                  holster.   He further testified that he
       Snyder then went to the right of his
                                                  graduated from the police academy before
car about 2-3 feet behind the rear bumper.
                                                  being hired, and had attended yearly
Despite orders to stop, the husband
                                                  refresher courses provided by the
continued to run toward the police car,
                                                  Commonwealth of Pennsylvania.
with hands extended in front of him at
shoulder height, the palms pointed                       Plaintiff called Dr. R. P. McCauley,
forward.    Snyder could see that the             a criminologist, to describe proper police
husband’s hands were empty when he                procedures. He stated that “knowing that
reached the front of the patrol car.              the guy was unarmed, a police officer
                                                  should not have drawn his weapon from
       As he took a firing position at the
                                                  the holster, but should have pushed,
rear of his car, Snyder took off the safety
                                                  tackled, or tripped the fleeing suspect.”
on his gun. He fired when, according to
the plaintiff’s expert’s testimony, the                  Police Chief Zuger testified that the
husband’s chest was 24-36 inches from the         manual for Borough officers cautioned
gun’s muzzle and the palm of his left hand        them about the use of deadly force and the
was 12-24 inches away from the muzzle.            continuum that was to be followed. He
The one shot that was fired entered the           also explained that there was no
husband’s chest in the center, struck the         requirement that officers become qualified
heart and exited on the extreme left of his       to use pepper spray or a baton. Zuger said
back.                                             further that Snyder had been an officer for
                                                  14 years and that there had never been a
        The Borough did not provide
                                                  complaint against him.
Snyder with a baton or pepper spray, nor
were they required. The use of these non-                 After the plaintiff rested, the
lethal weapons was permitted, but only            defendants moved for judgment as a
after an officer had successfully completed       matter of law under Fed. R. Civ. P. 50.
applicable familiarization programs.              The district judge, referring to Saucier v.
Snyder had not received such training and         Katz, 533 U.S. 194 (2001), stated that in
was armed only with a gun.                        ruling on qualified immunity, he would
                                                  view the facts in the light most favorable
       Plaintiff introduced portions of
                                                  to the plaintiff. He therefore assumed that
Snyder’s discovery deposition into
                                                  the shooting was intentional and not
evidence, including a statement that he did
                                                  accidental, but that he was not required to
not know that the husband was unarmed.
                                                  decide whether the officer’s conduct was
Further, given the facts and evidence that
                                                  right or wrong. Rather, the issue was
he had at the time, Snyder believed the
                                                  whether it was clear what a reasonable
husband may have had a weapon on his
                                                  officer would have done and, if that was
person. Snyder also said that if he had
                                                  not established, the policeman was entitled
had non-lethal weapons in his possession,

                                              4
to immunity. In the circumstances present,           motion for judgment as a matter of law
the court determined that Officer Snyder             against that party with respect to a claim
was entitled to qualified immunity and               . . . that cannot under the controlling law
entered judgment in his favor.                       be maintained . . . without a favorable
                                                     finding on that issue.” In ruling on that
        The court further ruled that there
                                                     motion, the court construes disputed issues
was no evidence to fasten personal liability
                                                     of fact in a light most favorable to the non-
on defendant Zuger. As to him, in his
                                                     movant.       Northview Motors, Inc. v.
official capacity, the grant of immunity to
                                                     Chrysler Motors Corp., 227 F.3d 78, 88
Snyder relieved Zuger as well as the
                                                     (3d Cir. 2000).
Borough from liability. In addition, the
trial judge found that nothing in the                                     II.
Constitution required a municipality, or its
                                                            Use of excessive force by a law
police department, to maintain a list of
                                                     enforcement officer is considered a
particularized type of equipment that must
                                                     “seizure” under the Fourth Amendment,
be furnished to its officers. The failure to
                                                     which prohibits such unlawful action.
provide non-lethal weapons did not rise to
                                                     Graham v. Connor, 490 U.S. 386, 395
a constitutional level.
                                                     (1989); Tennessee v. Garner, 471 U.S. 1, 7
        On appeal, plaintiff argues that the         (1985). The test is an objective one, which
District Court erred in granting judgment            scrutinizes the reasonableness of the
for defendant Snyder because there were              challenged conduct. The facts to be
disputes over material facts and questions           examined include “the severity of the
as to his credibility. Moreover, plaintiff           crime at issue, whether the suspect poses
asserts that Homestead and Chief Zuger               an immediate threat to the safety of the
should not have been automatically                   officer or others, and whether he is
dismissed because Snyder was granted                 actively resisting arrest or attempting to
immunity. Snyder defends the District                evade arrest by flight.” Graham, 490 U.S.
Court’s ruling and asserts as an alternate           at 396. Reasonableness is to be evaluated
basis for affirmance that the plaintiff failed       from the “perspective of a reasonable
to establish a violation of a constitutional         officer on the scene, rather than with the
right.                                               20/20 vision of hindsight.” Id.
                      I.                                    In Tennessee v. Garner, 471 U.S. at
                                                     11, the Court phrased the test as follows:
       Fed. R. Civ. P. 50(a)(1) provides
                                                     “[w]here the officer has probable cause to
that during a jury trial, if “a party has been
                                                     believe that the suspect poses a threat of
fully heard on an issue and there is no
                                                     serious physical harm, either to the officer
legally sufficient evidentiary basis for a
                                                     or to others, it is not constitutionally
reasonable jury to find for that party on
                                                     unreasonable to prevent escape by using
that issue, the court may determine the
                                                     deadly force.” In Garner, a fleeing teenage
issue against that party and may grant a

                                                 5
burglar was shot and killed by a policeman          same position as the District Court with
who never attempted to defend his action            respect to the admonition in Siegert v.
on any basis other than the need to prevent         Gilley, 500 U.S. 226 (1991) and Saucier to
an escape, a justification the Court refused        decide the constitutional issue before
to accept.                                          considering qualified immunity. See, e.g.,
                                                    Bell v. Johnson, 308 F.3d 594 (6 th Cir.
       Here, the District Court did not
                                                    2002).
make a specific finding that the plaintiff’s
evidence established a constitutional                       It is quite understandable that the
violation, but pragmatically “assumed”              trial judge was hesitant to rule that a
that for purposes of the Rule 50 motion             constitutional violation had occurred on
such a showing had been made. The court             the facts in the record at that point when
then moved onto the issue of whether                the qualified immunity issue offered a
Officer Snyder was entitled to qualified            more sure-footed disposition of the Rule
immunity.                                           50 motion. Here, unlike Saucier and
                                                    Siegert, the case had already been in trial
       The court was fully aware of
                                                    for a week. Consequently, Snyder had
Saucier’s explanation of the difference
                                                    already lost much of the benefit of
between the determination of excessive
                                                    qualified immunity – freedom from trial.
force in the constitutional sense and the
                                                    See, e.g., Bennett v. Murphy, 274 F.3d
ruling on qualified immunity. Comments
                                                    133, 136 (3d Cir. 2002).
made by the trial judge during argument on
the Rule 50 motion leave no doubt on that                  It is preferable to resolve the
score. That he reviewed the evidence                qualified immunity issue at the summary
bearing on the Fourth Amendment issue               judgment, or earlier, stage, but if this is not
favorably to the plaintiff was apparent.            possible, it remains appropriate to consider
                                                    the matter in a Rule 50(a) motion. See,
       The judge stated that “the
                                                    e.g., Ehrlich v. Town of Glastonbury, 348
constitutional violation requires an
                                                    F.3d 48, 49 (2d Cir. 2003); Johnson v.
intentional deprivation of rights and for
                                                    Breeden, 280 F.3d 1308, 1317 (11 th Cir.
these purposes then we are going to
                                                    2002).
assume that the shooting was intentional.”
Later in the colloquy he commented, “. . .                  The Court of Appeals in Siegert
I’m not sure that it wasn’t [a situation]           approved the grant of immunity on
where he [the officer] was justified in             summary judgment, but the Supreme Court
using deadly force.”                                affirmed by determ ining th at no
                                                    constitutional violation had occurred.
        Our appellate review of a Rule 50
                                                    Seigert, 500 U.S. at 230-35. Saucier held
ruling is plenary and is similar to that in a
                                                    that the defendant was entitled to qualified
summary judgment appeal. We review the
                                                    immunity, and it reversed the Court of
record as would a District Court. This
                                                    Appeals’ decision, which had denied
scope of appellate review places us in the

                                                6
qualified immunity at the summary                  contrast here, the expert opinion issue has
judgment stage because a material factual          not been briefed on appeal. In such a
dispute existed. Saucier, 533 U.S. at 199,         setting we are most reluctant to undertake
209. Those procedural differences with             an analysis sua sponte. See Garner, 471
the case before us are not dispositive, but        U.S. at 22 (“As for the policy of the Police
they are factors that have some bearing.           Department, the absence of any discussion
                                                   of this issue by the courts below, and the
       We believe that the circumstances
                                                   uncertain state of the record, preclude any
here, however, are sufficiently unlike those
                                                   c o n si d e r a ti o n o f i t s v a l i d it y. ” ).
in Saucier and Siegert that we may
                                                   Accordingly, we assume, but do not
proceed directly to the qualified immunity
                                                   decide, that plaintiff established a Fourth
issue without ruling preliminarily on the
                                                   Amendment constitutional violation and
constitutional violation claim.          See
                                                   proceed to the immunity issue.
Ehrlich, 348 F.3d at 55-60. We are
hesitant to hold that the jury could find
excessive force based on the record here.
                                                                           III.
                                                           An officer sued for a violation of
        It appears to us that without the
                                                   constitutional rights may be entitled to the
testimony of Dr. McCauley, the plaintiff
                                                   defense of qualified immunity, that is, an
failed to establish a constitutional
                                                   exemption from trial as well as from
violation. See Cowan ex rel. Estate of
                                                   liability for the alleged wrong. Saucier,
Cooper v. Breen, 352 F.3d 756 (2d Cir.
                                                   533 U.S. at 200; Garner, 471 U.S. 1;
2003) (expert opinion was part of
                                                   Harlow v. Fitzgerald, 457 U.S. 800 (1982).
plaintiff’s excessive force record). We
                                                   The formula for analyzing a qualified
have serious doubts about the admissibility
                                                   immunity claim is a several stage process.
of his opinion that Snyder should not have
                                                   First, the court is to decide whether a
drawn his gun based on the expert’s
                                                   constitutional violation has occurred, and
assumption that the officer knew the
                                                   then it must “‘proceed to determine
husband was unarmed.
                                                   whether that right was clearly established
       We recognize that expert opinions           at the time of the alleged violation.’”
can be redacted from the record on appeal          Wilson v. Layne, 526 U.S. 603, 609 (1999)
where they are found to be inadmissible            (quoting Conn v. Gabbert, 526 U.S. 286,
and the court may then proceed to enter            290 (1999)). A defendant “may . . . be
judgment based on the remaining                    shielded from liability for civil damages if
evidence. Weisgram v. Marley Co., 528              [his] actions did not violate ‘clearly
U.S. 440 (2000). In Weisgram, however,             established statutory or constitutional
the admissibility of the expert testimony          rights of which a reasonable person would
had been the focal point of appeal and had         have known.’” Hope v. Pelzer, 536 U.S.
been thoroughly briefed and argued. In             730, 739 (2002) (quoting Harlow, 457


                                               7
U.S. at 818).                                           City of Riviera Beach, 208 F.3d 919, 926-
                                                        27 (11th Cir. 2000)). Furthermore, “in
           “For a constitutional right to be
                                                        addition to the deference officers receive
clearly established, its contours ‘must be
                                                        on the underlying constitutional claim” in
sufficiently clear that a reasonable official
                                                        excessive force cases, “qualified immunity
would understand that what he is doing
                                                        can apply in the event the mistaken belief
violates that right.’”           Id. (quoting
                                                        was reasonable.” Id. We have followed
Anderson v. Creighton, 483 U.S. 635, 640
                                                        this doctrine in excessive force claims
(1987)). See also Groh v. Ramirez, ___
                                                        where the police shot a citizen. See, e.g.,
U.S. ___, 124 S.Ct. 1284 (2004)
                                                        Bennett, 274 F.3d 133; Curley v. Klem,
(explaining that whether immunity is
                                                        298 F.3d 271 (3d Cir. 2002); Henry v.
available depends on whether the
                                                        Perry, 866 F.2d 657 (3d Cir. 1989).
c o n s t it u t io n a l right w a s c l e ar ly
established.); Saucier, 533 U.S. at 202                         The importance of the factual
(noting that the relevant inquiry is                    background raises the question of whether
“whether it would be clear to a reasonable              the decision as to the applicability of
officer that his conduct was unlawful in                qualified immunity is a matter for the court
the situation he confronted.”).                         or jury. The Courts of Appeals are not in
                                                        agreement on this point. We held in Doe
          Once these requirements are found
                                                        v. Groody, 361 F.3d 232, 238 (3d Cir.
to have been satisfied, the inquiry proceeds
                                                        2004), that qualified immunity is an
to another, closely related issue, that is,
                                                        objective question to be decided by the
whether the officer made a reasonable
                                                        court as a matter of law. See also
mistake as to what the law requires.
                                                        Bartholomew v. Pennsylvania, 221 F.3d
Saucier emphasized that the inquiry for
                                                        425, 428 (3d Cir. 2000). The jury,
qualified immunity eligibility is distinct
                                                        however, determines disputed historical
from establishment of a constitutional
                                                        facts material to the qualified immunity
violation of excessive force. As the Court
                                                        question. See Sharrar v. Felsing, 128 F.3d
explained, “[t]he concern of the immunity
                                                        810, 828 (3d Cir. 1997). District Courts
inquiry is to acknowledge that reasonable
                                                        may use special interrogatories to allow
mistakes can be made as to the legal
                                                        juries to perform this function. See, e.g.,
constraints on particular police conduct
                                                        Curley, 298 F.3d at 279. The court must
. . . [i]f the officer’s mistake as to what the
                                                        make the ultimate determination on the
law requires is reasonable, however, the
                                                        availability of qualified immunity as a
officer is entitled to the immunity
                                                        matter of law. See Curley, 298 F.3d at
defense.” Saucier, 533 U.S. at 205.
                                                        279; Sharrar, 128 F.3d at 828 (citing
       Qualified immunity operates to                   Hunter v. Bryant, 502 U.S. 224 (1991)).
“protect officers from the sometimes ‘hazy              Several other Courts of Appeals have
border between excessive and acceptable
force.’” Id. at 206. (quoting Priester v.


                                                    8
adopted a standard similar to ours.2 In           conduct would have been clear, we must
contrast, other Courts of Appeals have            then determine whether he made a
held that District Courts may submit the          reasonable mistake. “[W]here there is ‘at
issue of qualified immunity to the jury. 3        least some significant authority’ that lends
                                                  support of the police action, we have
        All of the events leading up to the
                                                  upheld qualified immunity even while
pursuit of the suspect are relevant. See
                                                  deciding that the action in question
Abraham v. Raso, 183 F.3d 279, 292 (3d
                                                  violates the Constitution.” Groody, 361
Cir. 1999). The question is whether, in the
                                                  F.3d at 243 (internal citation omitted)
circumstances here, it would have been
                                                  (quoting Leveto v. Lapina, 258 F.3d 156,
clear to a reasonable officer that Snyder’s
                                                  166 (3d Cir. 2001)). See also In re City of
conduct was unlawful in the situation he
                                                  Philadelphia Litig., 49 F.3d 945, 970 (3d
confronted. If it would not have been
                                                  Cir. 1995).
clear, then qualified immunity is
appropriate.                                             A survey of the circumstances
                                                  known to Snyder is necessary to properly
       If the wrongfulness of the officer’s
                                                  apply this test. After he arrived on duty as
                                                  the officer in charge he had been given
              2
                 See, e.g., Rivera-Jimenez        reports on the events at the plaintiff’s
v. Pierluisi, 362 F.3d 87, 95 (1 st Cir.          home. He was aware that the husband had
2004); Stephenson v. Doe, 332 F.3d 68,            violated the PFA four times within the past
80-81 (2d Cir. 2003); Knussman v.                 several hours and that it was thought
Maryland, 272 F.3d 625, 634 (4 th Cir.            prudent to have an officer remain in the
2001); Warlick v. Cross, 969 F.2d 303,            house to ease the fears of plaintiff, who
305 (7 th Cir. 1992) Johnson v. Breeden,          had armed herself with a knife. Snyder
280 F.3d 1308, 1318 (11 th Cir. 2002).            was also in radio contact with the other
                                                  officers who were in pursuit of the
              3
                  See, e.g., McCoy v.             husband.
Hernandez, 203 F.3d 371, 376 (5 th Cir.
                                                         Before the shooting occurred, the
2000); Fisher v. City of Memphis, 234
                                                  husband had escaped from an armed
F.3d 312, 317 (6 th Cir. 2000); Turner v.
                                                  policeman and the chase was still
Arkansas Ins. Dept., 297 F.3d 751, 754
                                                  underway with a number of officers in
(8 th Cir. 2002); Ortega v. O’Connor, 146
                                                  pursuit. The husband was running at full
F.3d 1149, 1155-56 (9 th Cir. 1998);
                                                  speed directly toward Snyder’s police
Maestas v. Lujan, 351 F.3d 1001, 1007-8
                                                  cruiser. Ignoring orders to stop, the
(10th Cir. 2003). But see Peterson v. City
                                                  husband kept charging at the officer who
of Plymouth, 60 F.3d 469, 475 (8 th Cir.
                                                  held his fire until the muzzle of his gun
1995)(explaining that qualified immunity
                                                  was two feet away from the husband.
is ultimately a question of law and that
                                                  Although after the shooting it was
“[t]he jury’s role is limited to settling
                                                  determined that the husband was unarmed,
disputes as to predicate facts”).

                                              9
Snyder denied that he knew that at the time          day. What constitutes ‘reasonable’ action
and there was no evidence to the contrary.           may seem quite different to someone
                                                     facing a possible assailant than to someone
                                                     analyzing the question at leisure.”
       In these circumstances a reasonable
officer could believe that firing at the                    We are not persuaded that Officer
suspect was a proper response.          A            Snyder made a mistake in the use of his
reasonable officer would not be expected             weapon, but even if it was an error, it was
to take the risk of being assaulted by a             such as a reasonable officer could have
fleeing man who was so close that he                 made. Consequently, the District Court’s
could grapple with him and seize the gun.            entry of judgment in favor of defendant
Our recitation of these events is a                  Snyder will be affirmed.
discussion in slow motion of an incident
                                                                         IV.
that took place in a matter of seconds.
Officer Snyder had no time for the calm,                    Having held that Officer Snyder
thoughtful deliberation typical of an                was entitled to qualified immunity, the
academic setting.                                    District Court determined that it was
                                                     obligated to grant judgment as a matter of
        The plaintiff’s expert, Professor
                                                     law in favor of the Borough and Chief
McCauley, thought that Snyder should not
                                                     Zuger. We reach the same conclusion, but
have pulled his gun but rather should have
                                                     do so for different reasons.
chosen to tackle or otherwise physically
subdue the suspect. The expert’s opinion                     Because as a predicate to its
did not refer to the question of mistake and         decision on immunity, the court had
consequently there is no dispute of fact.            assumed that Snyder had committed a
Curley, 298 F.3d at 279. In any event, this          cons titutional viola tion, we must
is a question of law to be decided by the            determine whether the Borough or police
court as a matter of law, Groody, 361 F.3d           chief were liable for that violation. Based
at 238, rather than by expert opinion. See           on our review of the record, we conclude
Peterson v. City of Plymouth, 60 F.3d 469,           that the plaintiff failed to present evidence
475 (8 th Cir. 1995) (expert opinion not fact        from which a reasonable jury could find
based but only a legal conclusion).                  liability on the part of these defendants.
       We conclude that at most Synder’s                    A municipality cannot b e
conduct was a mistake that was reasonable            responsible for damages under section
under the circumstances. As Smith v.                 1983 on a vicarious liability theory,
Freland, 954 F.2d 343, 347 (6 th Cir. 1992),         Monell v. New York City Dept. of Soc.
said, “[w]e must never allow the                     Servs., 436 U.S. 658, 694-95 (1978), and
theoretical, sanitized world of our                  “can be found liable under § 1983 only
imagination to replace the dangerous and             where the municipality itself causes the
complex world that policemen face every              constitutional violation at issue.” City of


                                                10
Canton v. Harris, 489 U.S. 378, 385                   489 U.S. at 385).
(1989).    District Courts must review
                                                             The record here fails to establish
c la im s of m unicip al li a b ility
                                                      deliberate indifference or causation. Chief
“independently of the section 1983 claims
                                                      Zuger testified that officers attend annual
against the individual police officers.”
                                                      in-service courses, where they study,
Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d
                                                      among other subjects, relevant court
Cir. 1996); Fagan v. City of Vineland, 22
                                                      opinions. Officer Snyder testified that he
F.3d 1283, 1294 (3d Cir. 1994).
                                                      was present at these sessions. Zuger
       The plaintiff’s municipal liability            updated the Homestead police manual in
claim can be divided into two categories:             1997 and directed his officers to become
(1) failure to properly train its police              familiar with the updated policy manual,
officers in the constitutional use of deadly          which covered the “continuum of force.”
force and (2) failure to equip police
                                                             This evidence did not establish a
officers with alternatives to lethal
                                                      lack of training on the use of deadly force
weapons.
                                                      that amounted to a deliberate indifference,
        A plaintiff must identify a                   nor does it demonstrate a pattern of
municipal policy or custom that amounts               underlying constitutional violations that
to deliberate indifference to the rights of           should have alerted Homestead to an
people with whom the police come into                 inadequate training program. The record
contact. City of Canton, 489 U.S. at 388.             does not meet the high burden of proving
This typically requires proof of a pattern of         deliberate indifference, nor does it show
underlying constitutional violations. Berg            that Homestead’s actions caused a
v. County of Allegheny, 219 F.3d 261, 276             constitutional violation. We conclude that
(3d Cir. 2000). Although it is possible,              the plaintiff failed to present evidence
proving deliberate indifference in the                from which a reasonable jury could find
absence of such a pattern is a difficult task.        municipal liability.
See id.
                                                             Furthermore, we have never
       In addition to proving deliberate              recognized municipal liability for a
indifference, a plaintiff must also                   constitutional violation because of failure
demonstrate that the inadequate training              to equip police officers with non-lethal
caused a constitutional violation. See                weapons. We decline to do so on the
Grazier v. City of Philadelphia, 328 F.3d             record before us. In Plakas v. Drinski, 19
120, 124-25 (3d Cir. 2003). There must be             F.3d 1143, 1150-51 (7 th Cir. 1994), the
“a direct causal link between a municipal             Court of Appeals for the Seventh Circuit
policy or custom and the alleged                      rejected the claim that a county had
constitutional deprivation.’” Brown v.                violated a suspect’s constitutional rights by
Muhlenberg Township, 269 F.3d 205, 214                failing to equip its police officers with
(3d Cir. 2001) (quoting City of Canton,               alternatives to deadly force. In holding


                                                 11
that the constitution does not mandate the          point to something the city ‘could have
types of equipment a police department              done’ to prevent the unfortunate incident.”
must provide to its officers, the court             Permitting a lesser standard than deliberate
explained:                                          indifference would “engage the federal
                                                    courts in an endless exercise of second-
       “We do not think it is wise
                                                    guessing municipal employee training
       policy to permit every jury
                                                    programs. This is an exercise we believe
       in these cases to hear expert
                                                    the federal courts are ill suited to
       testimony that an arrestee
                                                    undertake as well as one that would
       would have been uninjured
                                                    implicate serious questions of federalism.”
       if only the police had been
                                                    City of Canton, 489 U.S. at 392.
       able to use disabling gas or
       a capture net or a taser (or                         Mandating the type of equipment
       even a larger number of                      that police officers might find useful in the
       police officers) and then                    performance of their myriad duties in
       decide that a municipality is                frequently unanticipated circumstances is
       liable because it failed to                  a formidable task indeed. It is better
       buy this equipment (or                       assigned to municipalities than federal
       increase its police force).                  courts.
       There can be reasonable
                                                           We conclude that the judgment as a
       debates about whether the
                                                    matter of law in favor of the Borough and
       Constitution also enacts a
                                                    Chief Zuger as well as that in favor of
       code of criminal procedure,
                                                    Snyder must be affirmed.
       but we think it is clear that
       the Constitution does not
       enact        a     police
                                                    Estate of Carswell v. Borough               of
       administrator’s equipment
                                                    Homestead et al., No. 03-2290
       list.” Plakas, 19 F.3d at
       1150-51 (footnote omitted).                  McKee, J., concurring as to parts I, II, and
                                                    III and dissenting as to part IV.
See also Salas v. Carpenter, 980 F.2d 299,
310 (5 th Cir. 1992).                                      I join Parts I, II and III of the
                                                    majority opinion because I agree that
       The Supreme Court has not yet
                                                    Officer Snyder is entitled to qualified
ruled in a case similar to Plakas, but
                                                    immunity as a matter of law. I also agree
language in the failure-to-train cases is
                                                    that the District Court did not err
pertinent. In City of Canton, 489 U.S.
                                                    analytically in assuming arguendo that a
392, we read: “In virtually every instance
                                                    constitutional violation had occurred.4
where a person has had his or her
constitutional rights violated by a city
                                                                   4
employee, a § 1983 plaintiff will be able to                       Cf. Grabowski v. Brown,
                                                    922 F.2d 1097, 1110 (3d Cir. 1991), cert.

                                               12
However, I must respectfully dissent from            citation omitted). We evaluate whether an
part IV of the majority opinion because I            officer’s conduct was reasonable, and thus
think that, viewed in the light most                 whether the officer is entitled to qualified
favorable to plaintiff,       the evidence           immunity, based upon the officer’s
establishes a prima facie case of liability          perspective at the time he/she acted.
against the Borough of Homestead and                 Graham v. Connor, 490 U.S. 386, 396
against Homestead Police Chief M ark                 (1989). We thereby avoid the inequities
Zuger in his official capacity (collectively         that might result from the 20/20 vision that
hereafter referred to as the “Borough”).5            comes with hindsight. Id.
                     I.                                     Here, however, the usual concerns
                                                     about judging an officer’s use of force
       This case illustrates all too clearly
                                                     from the perspective of hindsight are not
the daily reality in which police officers
                                                     present because our analysis has the
often have to make split-second, life-and-
                                                     benefit of Officer Snyder’s candid
death, decisions. The doctrine of qualified
                                                     testimony.    He testified that he saw
immunity recognizes that reality and
                                                     nothing in Carswell’s hands as Carswell
protects police from liability that might
                                                     ran toward him. App. at 1061a.6 He was
otherwise arise from the “sometimes hazy
                                                     then asked, “Had you had non-lethal
border between excessive and acceptable
                                                     weapons, you would not have pulled your
force[.]” Saucier v. Katz, 533 U.S. 194,
                                                     gun [as Carswell ran towards you], am I
206 (2001) (internal quotation marks and
                                                     correct?” He responded, “Yes.” Id. at
                                                     1064a. That testimony would allow a jury
denied sub nomine Borough of Roselle v.              to conclude that Officer Snyder used
Brown, 501 U.S. 1218 (1991) (finding it              excessive force in fatally shooting
“illogical and contrary to the interests of          Carswell and that he did so knowingly.
judicial economy” that this court could not
directly hold that “a constitutional right                   As the majority ably discusses, the
allegedly violated could not have been               fact that a jury could conclude that Snyder
clearly established because it has not been          used excessive force to subdue Carswell
recognized”). Further, I share the majority’s        and thus violated Carswell’s Fourth
skepticism regarding the admissibility of Dr.        Amendment rights is not enough, standing
McCauley’s expert testimony. See Maj. Op.            alone, to deprive him of qualified
at 15-16; see also Peterson v. City of               immunity. It is, however, enough to
Plymouth, 60 F.3d 469, 475 (8th Cir. 1995).          support a finding that the use of excessive
               5                                     force resulted from the Borough’s policy
                Because the claim against
Zuger in his official capacity is
tantamount to a claim against the                                  6
                                                                     The officer was asked,
Borough because it employs him, see                  “What you clearly saw is they were empty,
Hafer v. Melo, 502 U.S. 21, 25 (1991),               the hands?” and he answered, “Yes.” App. at
we deal with both claims at once.                    1061a.

                                                13
and custom of providing police officers              Harris, 489 U.S. 378, 385-88 (1989). A
only with guns, i.e. lethal weapons.7 The            municipality cannot, however, be held
jury could conclude from Snyder’s                    liable for the alleged constitutional
testimony that, at the very moment he fired          deprivation unless “there is a direct causal
the fatal shot, he believed that he was              link between a municipal policy or custom
using excessive deadly force where non-              and the [] deprivation.” Id. at 385.9 My
lethal force would suffice. Indeed, if the           colleagues believe that “the record here
jury accepted his testimony as true, it              fails to establish deliberate indifference or
would have been hard to conclude                     causation” as a matter of law. Maj. Op. at
anything else. The jury could therefore              26.      However, “whether or not a
reason that the officer had to resort to             defendant’s conduct amounts to deliberate
excessive force solely because the                   indifference has been described as a
Borough left him no alternative but to use
his gun in a situation where non-lethal
force could reasonably have been                     officials . . . so permanent and well settled as
employed to subdue Carswell.                         to virtually constitute law.” Berg v. County
                                                     of Allegheny, 219 F.3d 261, 275 (3d Cir.
                     A.                              2001) (internal quotation marks and citation
                                                     omitted). “The policy or adopted custom
        To establish a municipality’s
                                                     that subjects a municipality to § 1983
liability under § 1983, the plaintiff must           liability may relate to the training of police
show that plaintiff’s constitutional rights          officers. A municipality’s failure to train its
were violated by the municipality’s                  police officers can subject it to liability,
deliberate indifference as reflected in its          however, only where it reflects a deliberate
policy or custom.8 See City of Canton v.             or conscious choice by the municipality – a
                                                     policy as defined in Supreme Court cases.”
                                                     Brown v. Muhlenberg Township, 269 F.3d
               7
                 The qualified immunity of           205, 215 (3d Cir. 2001) (internal quotation
the police officers and the liability of the         marks, brackets and citation omitted).
Borough are two separate and distinct issues,
                                                                     9
as the majority explains. See Maj. Op. at 25                           A municipality like the
(citing Kneipp v. Tedder, 95 F.3d 1199,              Borough “may . . . be sued directly if it is
1213 (3d Cir. 1996) and Fagan v. City of             alleged to have caused a constitutional tort
Vineland, 22 F.3d 1283, 1294 (3d Cir.                through a policy statement . . . officially
1994)).                                              adopted and promulgated by that body’s
                                                     officers.” City of St. Louis v. Praprotnik,
               8
                  “Policy is made when a             485 U.S. 112, 121 (1988) (internal quotation
decision maker possessing final authority to         marks and citation omitted). Alternatively, a
establish municipal policy with respect to           plaintiff can establish a causal link between
the action issues an official proclamation,          the alleged constitutional violation and a
policy, or edict.” Kneipp, 95 F.3d at 1212           municipality’s custom or practice.
(internal quotation marks and citation               Muhlenberg Township, 269 F.3d at 214-15.
omitted). “Customs are practices of state

                                                14
classic issue for the fact finder and a             elaborated upon this in Board of County
factual mainstay of actions under § 1983.”          Comm’rs of Bryan County v. Brown, 520
A.M . v. Luzerne Cty. Juvenile Detention            U.S. 397 (1997). It explained:
Ctr., 372 F.3d 572, 588 (3d Cir. 2004)
                                                           In leaving open in Canton
(internal quotation marks, citation and
                                                          the poss ibility that a
brackets omitted). Given the evidence
                                                          plaintiff might succeed in
here, that should have been an issue for the
                                                          carrying a failure-to-train
jury to decide and the Borough was
                                                          claim without showing a
therefore not entitled to judgment as a
                                                          pattern of constitutional
matter of law under Rule 50.
                                                          violations, w e s im ply
      In Brown v. Muhlenberg Township,                    hypothesized that, in a
269 F.3d 205, 215 (3d Cir. 2001), we                      narrow         range       of
quoted City of Canton, noting:                            circumstances, a violation of
                                                          federal rights may be a
       It may seem contrary to
                                                          highly predictable
       common sense to assert that
                                                          consequence of a failure to
       a municipality will actually
                                                          equip law enforcement
       have a policy of not taking
                                                          officers with specific tools
       reasonable steps to train its
                                                          to hand le recu rring
       employees.       But it may
                                                          situations. The likelihood
       happen that in light of the
                                                          that the situation will recur
       duties assigned to specific
                                                          and the predictability that an
       officers or employees the
                                                          officer lacking specific tools
       need for more or different
                                                          to handle that situation will
       training is so obvious, and
                                                          violate citizens’ rights could
       the inadequacy so likely to
                                                          justify a finding that
       result in the violation of
                                                          policymakers’ decision not
       constitutional rights, that the
                                                          to train the officer reflected
       policymakers of the city can
                                                          “deliberate indifference” to
       reasonably be said to have
                                                          the obvious consequence of
       been deliberately indifferent
                                                          the policymakers’ choice –
       to the need.
                                                          namely, a violation of a
                                                          specific constitutional or
                                                          statutory right. The high
I believe that a jury could reasonably
                                                          degree of predictability may
conclude that this record establishes such
                                                          also support an inference of
deliberate indifference because the
                                                          c a usa tion – th at th e
Borough’s training left Officer Snyder
                                                          municipality’s indifference
with no reasonable alternative to the use of
                                                          led directly to the very
deadly force.       The Supreme Court

                                               15
                 consequence that                     the police department, and all police
                 was so predictable.                  officers in the Borough were required to
                                                      familiarize themselves with it and attest to
Id. at 409-10.
                                                      having read it. It prescribes an official
        We applied this teaching in Berg v.           policy of “progressive force” for the
County of Allegheny, 219 F.3d 261 (3d                 Borough’s police, stating that “[t]he use of
Cir. 2000). There, we reviewed the                    force will be progressive in nature, and
District Court’s grant of summary                     may include verbal, physical force, the use
judgment in favor of the defendants in a              of non-lethal weapons or any other means
suit alleging a violation of civil rights as a        at the officer’s disposal, provided they are
result of the plaintiff’s arrest on an                reasonable under the circumstances.” App.
erroneous warrant. Plaintiff argued that              at 998a. Chief Zuger testified further that
the defendant county maintained a “flawed             “[t]he policy of the Homestead Police
warrant creation practice and poor training           Department is to use only the amount of
procedures.” Id. at 275 (internal quotation           force which is necessary in making an
marks omitted). Warrants were generated               arrest or subduing an attacker. In all
“based on a single datum – the criminal               cases, this will be the minimum amount of
complaint number . . . [with] no other                force that is necessary.” App. at 1001a
information [and] no check . . . to guard             (emphasis added).10
against the kind of mistake [that was]
                                                              However, as the majority notes, the
made. Nor [were] there procedures that
                                                      Borough provided only guns to its officers.
would allow [an] officer . . . who suspects
                                                      It did not equip them with any non-lethal
an error to confirm that suspicion.” Id. We
                                                      weapons. Rather, an officer had to request
concluded that the “failure to provide
                                                      any non-lethal weapon he/she might wish
protective measures and failsafes . . .
                                                      to carry and the request had to be approved
seems comparable to ‘a failure to equip
                                                      by Zuger. If the request was approved, the
law enforcement officers with specific
                                                      officer then had to undergo additional
tools to handle recurring situations’” and
                                                      training with the new weapon and become
reversed the grant of summary judgment
                                                      certified to use it. App. at 986a-87a.
for the municipality. Id. at 277.
                                                      Although Chief Zuger was not asked about
                      B.                              training in lethal force, the fact that
       An even more compelling prima
facie case of municipal liability under §                           10
                                                                      Indeed, a municipal
1983 was established here than in Berg.
                                                      policy that authorized and condoned the
Police Chief Zuger compiled the policy
                                                      use of deadly force when an officer
manual for the Boroug h’s po lice
                                                      reasonably believed non-lethal force to
department pursuant to his authority as
                                                      be sufficient would certainly run afoul of
police chief. App. at 984a. The manual
                                                      the Constitution. Cf. Canton, 489 U.S. at
contains the Borough’s official policy for
                                                      390 n.10.

                                                 16
officers were equipped with a gun and had                  in these cases to hear expert
to be trained in any approved non-lethal                   testimony that an arrestee
weapon they may have carried certainly                     would have been uninjured
supports the inference that the Borough                    if only the police had been
only trained officers in the use of lethal                 able to use disabling gas or
force unless the Borough approved an                       a capture net or a taser (or
individual request for a non-lethal weapon.                even a larger number of
                                                           police officers) and then
        It is obviously foreseeable that an
                                                           decide that a municipality is
officer who is equipped only with a lethal
                                                           liable because it failed to
weapon, and trained only in the use of
                                                           buy this equipment (or
lethal force, will sooner or later have to
                                                           increase its police force).
resort to lethal force in situations that
                                                           There can be reasonable
officer believes could be safely handled
                                                           debates about whether the
using only non-lethal force under the
                                                           Constitution also enacts a
Borough’s own “progressive force” policy.
                                                           code of criminal procedure,
This record therefore presents that “narrow
                                                           but we think it is clear that
range of circumstances, [where] the
                                                           the Constitution does not
violation of federal rights [is] a highly
                                                           enact        a     polic e
predictable consequence of a failure to
                                                           administrator’s equipment
equip law enforcement officers with
                                                           list.
specific tools to han dle recurring
situations.” Brown, 520 U.S. at 409.
        My colleagues state that “we have           Id. at 1150-51 (footnote omitted) (quoted
never recognized municipal liability for a          in Maj. Op. at 27-28). However, defining
constitutional violation because of failure         our inquiry in terms of whether the
to equip police officers with non-lethal            Co nstitution creates an approved
weapons.” Maj. Op. at 27. I agree.                  “equipment list” for police is both
However, we have never before addressed             misleading and counterproductive. That is
that precise issue. Accordingly, our failure        simply not the issue, and that formulation
reject that theory of recovery is neither           of the issue obfuscates our inquiry rather
relevant nor precedential. I am also far            than advancing it. Given the duties of a
less impressed with the analysis of the             police officer, it was certainly foreseeable
Court of Appeals for the Seventh Circuit            that the Borough’s policy of equipping
in Plakas v. Drinski, 19 F.3d 1143 (7th             officers only with guns and training them
Cir. 1994) than my colleagues. As the               only in the use of deadly force would
majority notes, the court there stated:             sooner or later result in the use of
                                                    unjustifiable deadly force.
       We do not think it is wise
       policy to permit every jury                         Moreover, Chief Zuger’s testimony


                                               17
dispels the fanciful notion that a finding of        training program.” Maj. Op. at 26-27.
liability here would potentially result in a         However, plaintiff never argued that
constitutionally mandated “equipment                 liability should be imposed on the basis of
list.” He testified that an officer could            a failure to train in the use of deadly force.
seek approval for “any” non-lethal                   Rather, plaintiff argues that the Borough
weapon, including mace, pepper spray, a              should be liable because its policy of
baton, etc. 1020a (emphasis added). The              requiring training only in using deadly
result is, therefore, not a mandated                 force and equipping officers only with a
equipment list, but a mandated alternative           lethal weapon, caused Officer Snyder to
to using deadly force in those situations            use lethal force even though he did not
where an officer does not believe it is              think it reasonable or necessary to do so.
necessary to use deadly force. We must
                                                             Moreover, as I have already noted,
not forget that      “[o]ne of the main
                                                     given the duties of a police officer, it does
purposes of nonlethal, temporarily
                                                     not require a “pattern of underlying
incapacitating devices such as pepper
                                                     constitutional violations” to alert the
spray is to give police effective options
                                                     Borough to the fact that its policies would
short of lethal force that can be used to
                                                     cause police to unnecessarily use deadly
take custody of an armed suspect who
                                                     force. Rather, as I have argued above, this
refuses to be lawfully arrested or
                                                     record satisfies the teachings of Brown
detained.” Gaddis v. Redford Township,
                                                     because plaintiffs have established that
364 F.3d 763, 774 (6th Cir. 2004).
                                                     “narrow range of circumstances, [where] a
M oreover, interpreting the Fourth
                                                     violation of federal rights may be a highly
Amendment as requiring municipalities to
                                                     predictable consequence of a failure to
provide reasonable alternatives to the use
                                                     equip law enforcement officers with
of deadly force imposes no undue burden.
                                                     specific tools to handle recurring
In fact, here, it would do nothing more
                                                     situations.” Brown, 520 U.S. at 409.
than effectuate the Borough’s own
                                                     Thus, even without a pattern of abuse,
announced policy of “progressive force.”
                                                     “t]he likelihood that the situation will
        My colleagues imply that the                 recur and the predictability that an officer
Borough can not be liable under a failure            lacking specific tools to handle that
to train theory because its police officers          situation will violate citizens’ rights could
were properly trained in the use of deadly           justify a finding that policymakers’
force. The majority states: “This evidence           decision . . . reflected ‘deliberate
did not establish a lack of training on the          indifference’ to the obvious consequence
use of deadly force that amounted to a               of the policymakers’ choice.” Id.
deliberate indifference, nor does it
                                                             In Berg, we allowed municipal
demonstrate a pattern of underlying
                                                     liability under § 1983 because procedures
constitutional violations that should have
                                                     were inadequate to guard against someone
alerted [the Borough] to an inadequate
                                                     being arrested as the result of an

                                                18
erroneously issued warrant and municipal
defendants “employed a design where the
slip of a finger could result in wrongful
arrest and imprisonment[.]” 219 F.3d at
277. Reckless indifference that causes the
fatal use of excessive force must surely be
as actionable as reckless indifference
resulting in “the slip of a finger” that
merely causes an arrest.11
                      II.
        Thus, for the reasons I have set
forth above, I must respectfully dissent
from the majority opinion insofar as it
affirms the District Court’s grant of
judgment as a matter of law under Fed. R.
Civ. P. 50 for the Borough. I believe
plaintiff is entitled to a new trial solely
against the Borough, and I would remand
to the District Court for that purpose.




               11
                  I also note that in Berg, we
did not express a concern that holding
municipalities liable for arrests that resulted
from nothing more than “the slip of a finger”
would result in a constitutionally mandated
set of procedures that municipalities would
have to follow when obtaining arrest
warrants.

                                                  19
