                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-7-2002

Pikel v. Garrett
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3850




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Recommended Citation
"Pikel v. Garrett" (2002). 2002 Decisions. Paper 711.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/711


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                                                 NOT PRECEDENTIAL
  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            ____________

                 No: 01-3850
                ____________

   LYNN PIKEL; SAMUEL CRONAN;
 WILLIAM DALTON; LARRY WANNETT;
    WILLIAM POSA; WAYNE LING

                        v.

 BARBARA GARRETT; LAWRENCE FUKSA;
PATRICK MCCARTHY; WILLIAM PURIFOY;
    R. E. SHAFFER; DANIEL OPSATNIK;
  ROBERT E. FYOCK; DETECTIVE ALMES;
    JOHN DOE NO. 1, DEPUTY SHERIFF
 OF INDIANA COUNTY; JOHN DOE NO. 2;
      a Federal Agent; JAMES E. LIPTAK;
     JODI A. LUCIC; BECKWITH, Sheriff
          of Indiana County; INDIANA;
        UNITED STATES OF AMERICA


        Barbara Garrett, Lawrence Fuksa,
         William Purifoy, Jodi A. Lucic,
                             Appellants




  Appeal from the United States District Court
    for the Western District of Pennsylvania
     (D.C. Civil Action No. 98-cv-01521)
  District Judge: Honorable Robert J. Cindrich
            ____________________

          Argued on August 1, 2002

         Before: ROTH, RENDELL
         and AMBRO Circuit Judges
                                      (Opinion filed: November 7, 2002)


  Timothy P. O’Brien, Esquire (Argued)
  1705 Allegheny Building
  429 Forbes Avenue
  Pittsburgh, PA 15219

          Attorney for Appellees

D. Michael Fisher
Attorney General

Rodney M. Torbic (Argued)
Senior Deputy Attorney General

Calvin Koons
Senior Deputy Attorney General
Appellate Litigation Section

John G. Knorr, Jr.
Chief Deputy Attorney General
Chief, Appellate Litigation Section

Office of the Attorney General
6th Floor, Manor Complex
564 Forbes Avenue
Pittsburgh, PA 15219

        Attorneys for Appellants
                                                  OPINION


ROTH, Circuit Judge:

          On September 13, 1996, certain Pennsylvania law enforcement agents searched the

premises of Pikel Universal Auto Repair, pursuant to a warrant for contraband and in

furtherance of a drug investigation. During the search, the agents detained various employees

of Pikel, who were on the premises but were not implicated in the drug investigation, and left

them handcuffed for approximately three and one half hours. One of the employees, Samuel

Cronan, sustained physical injuries when two of the agents pushed him to the ground and

pointed a gun at his ear after he failed to respond to an order to “get down.”1

          Objecting to their initial seizure, their prolonged detention and the agents’ alleged use

of excessive force, six of the employees brought a Section 1983 action against the agents in

the United States District Court for the Western District of Pennsylvania. On September 11,

2001, the District Court granted summary judgment in favor of some of the agents, based on

qualified immunity, but denied summary judgment on the basis of qualified immunity to

defendants Barbara Garrett, Lawrence Fuksa, William Purifoy, and Jodi A. Lucic on the

employees’ claims arising out of the length of their detention and the alleged use of excessive




      1
       The parties dispute the duration of the Employees’ detention and the extent and cause of
   Cronan’s injuries. However, for purposes of reviewing the Agents’ motion for summary
   judgment, we view these issues of fact in a light most favorable to the Employees - the non-
   moving parties. See Curley v. Klem, 2002 U.S. App. LEXIS 15488, *28 (3d Cir. 2002).

                                                        3
force. These four agents appealed. Because we conclude that the appellants are entitled to

qualified immunity from these claims, we will reverse.

        A.      Jurisdiction and Standard of Review

        The District Court had subject matter jurisdiction over the employees’ § 1983 action

pursuant to 28 U.S.C. §§ 1331 and 1343. Ordinarily, denials of summary judgment are not

appealable because they are not considered “final” for purposes of 28 U.S.C. § 1291.

However, we have appellate jurisdiction to review the District Court’s denial of summary

judgment under the “collateral order doctrine” since the appellants’ entitlement to qualified

immunity is at issue. Torres v. United States, 200 F.3d 179, 184 (3d Cir. 1999). We exercise

plenary review over an order denying a claim of qualified immunity. See id.

        B.      Discussion

        Government officials performing discretionary functions are entitled to qualified

immunity if “a reasonable officer could have believed that [the] conduct was lawful, in light of

the clearly established law and the information in the officer’s possession.” Sharrar v.

Felsing, 128 F.3d 810, 826 (3d Cir. 1997). Thus, the appellants are entitled to qualified

immunity even if they “reasonably but mistakenly” concluded that their conduct was lawful

given the clearly established law in 1996 - when the search occurred. Id.

        In making its ruling in this case, the District Court did not consider whether in 1996

the circumstances of the prolonged detention and the excessive use of force violated “clearly

established law.” It should have done so. See Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151,

2160 (2001). As we explain below, we conclude that the law was not clearly established in

                                                      4
1996 that the detention of the employees and the force used to carry out the search were

unlawful. Accordingly, we hold that the appellants are entitled to qualified immunity and that

the District Court should have granted the motion for summary judgment in its entirety.

                1.      The Detention of the Employees

        In Michigan v. Summers, 452 U.S. 692, 705 (1981), the Supreme Court held that “a

warrant to search for contraband founded on probable cause implicitly carries with it the

limited authority to detain the occupants of the premises while a proper search is conducted.”

The Summers Court reasoned that allowing police officers to “routinely exercise

unquestioned command of the situation” by detaining occupants would minimize many of the

risks attendant to drug searches including suspect flight, destruction of evidence and harm to

officers. Id. at 702-03. Ultimately, the reasonableness of such a detention depends on a

balance of the law enforcement interests served against the level of intrusiveness imposed.

See Leveto v. Lapina, 258 F.3d 156, 167 (3d Cir. 2001).

        The detention of the employees was, in some ways, more intrusive than the detention

considered in Summers. For example, the detention of the employees took place in the public

workplace rather than a private residence. It, therefore, implicated the “public stigma” and

“indignity” associated with police detention to a greater degree. 452 U.S. at 702. Moreover,

the detention at issue here was relatively long and intrusive insofar as the employees were left

handcuffed for nearly three and one half hours.

        However, the detention also served many valid law enforcement interests. As

Summers suggested, drug investigations are, by their nature, “the kind of transaction[s] that

                                                      5
may give rise to sudden violence or frantic efforts to conceal or destroy evidence.” 452 U.S.

at 702. The instant investigation was no exception. During the detention, the agents learned

that many of the employees had criminal records - including violent offenses. Moreover, the

record suggests that tools and machinery about the auto repair facility could have been used as

weapons. One of the employees, in fact, was carrying a gun when she initially was detained.

Given these facts, it certainly was reasonable to assume that detention might reduce the risk

of harm to the agents and to the public. Furthermore, the agents used the detention as an

opportunity to identify and question the employees to determine what they knew about the

drug trafficking that took place at Pikel.

        Although Summers dealt with a residential search, we have considered the Summers

rule in the context of workplace searches. In both Leveto v. Lapina, 258 F.3d 156 (3d Cir.

2001) and Watkins v. Fisher, 281 F.3d 226, 2001 U.S. App. LEXIS 27973 (3d Cir. 2001), we

held that agents detaining employee-occupants of premises being searched were entitled to

qualified immunity from § 1983 suits. In both cases, we determined that reasonable officers

would not consider this extension of Summers to violate clearly established law at the time of

the searches - 1996 and 1999, respectively.

        With respect to the duration of detention, we have recognized that the breadth of the

Summers rule was “highly uncertain” in 1996. See 258 F.3d at 173. While Summers, itself,

intimated that “[s]pecial circumstances, or possibly a prolonged detention, might lead to a

different conclusion in an unusual case,” few cases since have delineated how long is “too

long.” Summers, 452 U.S. at 705 n.21 (emphasis added). See also Baker v. Monroe

                                                     6
Township, 50 F.3d 1186, 1192 (3d Cir. 1995) (“[T]here is no per se rule about the length of

time a suspect may be detained before the detention becomes a full-scale arrest. Instead, the

court must examine the reasonableness of the detention, particularly whether the police were

diligent in accomplishing the purpose of the stop as rapidly as possible.”). One such case -

Leveto - held that it was unreasonable for IRS agents to detain the occupant of a veterinarian’s

office for eight hours during a search. See 258 F.3d at 170-72. However, even the Leveto

court concluded that the IRS agents were nonetheless entitled to qualified immunity since the

eight hour detention was not clearly unlawful when the search took place. See id. at 172-73.

        Given this precedent and the relative uncertainty in the law interpreting Summers when

the Pikel search occurred in 1996, we conclude that, although employees may not be

unreasonably detained during a search, the appellants were reasonable in their belief that the

length of the detention here was not unreasonable. As such, the appellants are entitled to

qualified immunity from the employees’ claims arising out of their detention.

                2.       Excessive Force

        The District Court denied the appellants summary judgment on the excessive force

claims because it found genuine issues of material fact as to whether they were reasonable in

their use of drawn guns, handcuffs, and - in Cronan’s case - pushing. However, we hold that

the appellants were reasonable in concluding that none of these actions violated “clearly

established” law. Accordingly, we will reverse the District Court on the ground that the

appellants are entitled to qualified immunity from these claims, as well.

        In Baker, we reviewed a grant of summary judgment to a township and township police

                                                       7
officer named in a § 1983 action similar to the employees’ action here. See 50 F.3d at 1189-

90. The Bakers were social guests at a residence that police planned to search for drugs and

related contraband pursuant to a “no-knock” warrant. Unfortunately for the Bakers, they

approached the residence at the same time that law enforcement agents began executing their

warrant. The police came upon the Bakers with guns drawn, ordered them to “get down,”

forced them to the ground and temporarily handcuffed them.

        The Baker court reversed the grant of summary judgment with respect to one particular

police officer, reasoning that issues of material fact existed about whether or not he

acquiesced to the use of excessive force during the search. In doing so, however, the court

also discussed whether law enforcement’s use of drawn guns and handcuffs or pushing

occupants to the ground during the course of a drug raid constituted “excessive force.” Id. at

1191-95.

        The Baker court explained that there was no per se rule regarding when the use of

drawn guns and handcuffs prior to a formal arrest would constitute excessive force. See id. at

1193. Rather, the use of guns and handcuffs “must be justified by the circumstances.” Id.

(emphasis added). Similarly, the court considered the circumstances of the search to

conclude that ordering the Bakers to “get down” and forcibly pushing them to the ground was

constitutionally justified under Summers and Terry v. Ohio, 392 U.S. 1 (1968). Id. at 1192

(considering particularly the dangers inherent in drug raids, the need to identify occupants, the

need for the “element of surprise,” the need to protect occupants from harm and the need to

clear the way for law enforcement’s approach).

                                                      8
        Additionally, the Supreme Court has instructed us to consider the stressful nature of

interactions between suspects and the police in balancing circumstances to determine if the

use of force is reasonable. “‘Not every push or shove, even if it may later seem unnecessary

in the peace of a judge's chambers,’ . . . violates the Fourth Amendment. [Rather, t]he calculus

of reasonableness must embody allowance for the fact that police officers are often forced to

make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving

- about the amount of force that is necessary in a particular situation.” Graham v. Conner, 490

U.S. 386, 396-97 (1989) (citation omitted).

        As a practical matter, the agents’ search of Pikel involved many of the same

circumstances and implicated many of the same interests as the search at issue in Baker. The

agents - like the police officers in Baker - had to identify the occupants and secure the

premises for their own safety and the safety of the occupants. Moreover, both cases involved

drug raids which are not only inherently stressful but also inherently risky. See 50 F.3d at

1191 (“The dangerousness of chaos is quite pronounced in a drug raid, where the occupants

are likely to be armed, where the police are certainly armed, and the nature of the suspected

drug operation would involve a great deal of coming and going by drug customers.”). If

anything, Cronan’s noncompliance with the order to “get down” makes the use of force more

justifiable in the instant case than in Baker.

        Although police officers’ use of drawn guns, handcuffs, and pushing could violate

“clearly established” law, the constitutionality of using such force was - under the law

established in 1996 - highly dependant upon a balance of circumstances. At the very least, the

                                                      9
circumstances of the Pikel search make the reasonableness of the appellants’ force a “close

call.” Accordingly, the appellants have qualified immunity from the excessive force claims.

        C.      Conclusion

        For the foregoing reasons, we will reverse that portion of the September 11, 2001,

Order denying the appellants’ motion for summary judgment and remand this case to the

District Court for the entry of summary judgment in their favor.




                                                    10
_______________________

TO THE CLERK:

      Please file the foregoing Opinion.




                                                BY THE COURT:


                                                 /s/ Jane R. Roth
                                                  Circuit Judge




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