                                                  NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ___________

                          No. 11-1795
                          ___________

       KHALIL CHRISTIAN; ALLENCHARLES BURTON,
        By his mother and natural guardian Elyanore Davies;
     E.D.C., by his mother and natural guardian, Arnette Covert;
 D.C. by his mother and natural guardian, Arnette Covert; ARNETTE
       COVERT; AUGUSTUS COLLINS; DEVIN GILLIAM

                                v.

      SGT WILLIAM ORR; SGT LEONARD MCDEVITT;
    OFFICER BRIAN PATTERSON; TOWNSHIP OF DARBY;
OFFICER GERARD SCANLAN, JR.; BOROUGH OF SHARON HILL;
    CHRISTOPHER EISERMAN; BOROUGH OF FOLCROFT

                              William Orr; Leonard McDevitt, Gerald
                              Scanlan, Jr.; Christopher Eiserman,

                                                        Appellants
                   _______________________

          On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
              D.C. Civil Action No. 2-08-cv-02397
                  (Honorable Gene E. K. Pratter)
                        ______________

          Submitted Pursuant to Third Circuit LAR 34.1(a)
                       November 13, 2012

     Before: SCIRICA, FISHER and JORDAN, Circuit Judges.

                     (Filed: January 28, 2013)
                                     _________________

                                 OPINION OF THE COURT
                                    _________________

SCIRICA, Circuit Judge.

                                                I.

       Seven plaintiffs allege multiple constitutional violations against four police officers from

Upper Darby Township and Borough of Sharon Hill related to the execution of a search warrant

for drugs at Top of the Line Barbershop on December 16, 2005. The warrant was executed on a

Friday around 4:30 p.m. when nine people were in the barbershop: barbers Augustus Collins and

Devin Gilliam; a 13-year-old boy whom we will call ACB; patrons Khalil Christian, Arnett

Covert and her four-year-old and seven-year-old sons, and an unidentified woman with her

young son.

       At least nine officers entered the shop, allegedly with their guns drawn.1 The officers

were executing a facially valid warrant to search the Top of the Line Barbershop and Darren

“Dee” Brown, former owner of the shop, for drugs. Plaintiffs dispute the warrant’s validity.

Plaintiffs Collins, Christian, Gilliam, ACB and Covert allege officers pressed guns to their heads,

ordered them on the ground, cursed at them, shouted racial epithets, and threatened to “blow

[their] brains out.” Christian, Collins, Gilliam and ACB were all handcuffed and searched.

Covert was also searched.




1
 The number of officers is disputed, but the District Court found at least five other
officers, in addition to the four defendants, participated in the raid. Only four of the
officers are defendants in this action: William Orr, Gerard Scanlan Jr., Christopher
Eiserman and Leonard McDevitt. Plaintiffs’ claims against Darby Township and Folcroft
Borough were dismissed with prejudice.
                                                 2
        Plaintiffs’ complaint included eight counts, alleging all four officers violated their Fourth

Amendment Rights in obtaining and executing the search warrant. In addition, plaintiffs Gilliam,

Collins and Christian alleged false arrest. All plaintiffs brought a Monell claim against the

Borough of Sharon Hill. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).

Defendants moved for summary judgment on all claims. The District Court granted summary

judgment to Sharon Hill on plaintiffs’ Monell claim. The officers were also granted summary

judgment on Gilliam and Collins’ false arrest claims. The District Court denied summary

judgment on all other claims, and defendants appealed. After this appeal was filed, Christian

reached a settlement with defendants and withdrew his complaint.

                                                   II.

        We have jurisdiction to hear appeals from final orders of district courts. 28 U.S.C.

§ 1291. Generally a district court’s order denying a motion for summary judgment is not a final

judgment. Rivas v. City of Passaic, 365 F.3d 181, 191 (3d Cir. 2004). But orders denying

summary judgment are appealable under the collateral order doctrine when “(1) the defendant is

a public official asserting a qualified immunity defense; and (2) the issue on appeal is whether the

facts alleged by the plaintiff demonstrate a violation of clearly established federal law, not which

facts the plaintiff might be able to prove at trial.” Id. “[W]e lack jurisdiction to consider whether

the district court correctly identified the set of facts that the summary judgment record is

sufficient to prove….” Id. at 192. “[B]ut we possess jurisdiction to review whether the set of

facts identified by the district court is sufficient to establish a violation of a clearly established

constitutional right.” Id.

        We exercise plenary review of the denial of summary judgment. Creque v. Texaco

Antilles Ltd., 409 F.3d 150, 152 (3d Cir. 2005). Summary judgment is proper when the evidence



                                                    3
shows “that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). We “view the inferences to be drawn from

the underlying facts in the light most favorable to” the non-moving party. Kopec v. Tate, 361

F.3d 772, 775 (3d Cir. 2004).

                                                 III.

                                                 A.

       Government officials performing discretionary functions are entitled to immunity where

their “conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A

defendant has the burden to establish that he is entitled to qualified immunity. Kopec v. Tate, 361

F.3d 772, 776 (3d Cir. 2004). To determine qualified immunity, the court must consider whether

the facts alleged, taken in the light most favorable to the plaintiff, “show the officer’s conduct

violated a constitutional right” and then “ask whether the right was clearly established.” Saucier

v. Katz, 533 U.S. 194, 201 (2001).

                                                 B.

       Defendants contend the District Court failed to determine whether each defendant’s

conduct violated a clear constitutional right against each plaintiff for each of the counts alleged.

“A defendant in a civil rights action must have personal involvement in the alleged wrongs;

liability cannot be predicated solely on the operation of respondeat superior. Personal

involvement can be shown through allegations of personal direction or of actual knowledge and

acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted).

       Qualified immunity is not available where a defendant had actual knowledge of and

acquiesced to illegal conduct. “The approving silence emanating from the officer who stands by



                                                  4
and watches as others unleash an unjustified assault contributes to the actual use of excessive

force, and we …. will not immunize such conduct by suggesting that an officer can silently

contribute to such a constitutional violation and escape responsibility for it.” Smith v. Mensinger,

293 F.3d 641, 651 (3d Cir. 2002) (citing Baker v. Monroe Twp. 50 F.3d 1186, 1193 (3d Cir.

1995)). Depending on the facts, officers may be liable for the unconstitutional conduct of their

colleagues of the same rank, and even superiors. Id.

       Viewing the evidence in the light most favorable to plaintiffs, all the officer defendants

were present in the barbershop when each plaintiff was subjected to the alleged unconstitutional

conduct. If so, each defendant may have had actual knowledge of the treatment of each plaintiff

by the other officers. At this stage, the District Court found no evidence any of the defendants

attempted to intervene to prevent or alter their colleagues’ conduct. This does not rule out

possible acquiescence. Since plaintiffs raised a genuine dispute of material fact whether each

defendant had actual knowledge and acquiesced to each plaintiffs’ alleged constitutional

violations, defendants are not entitled to qualified immunity at this time. Of course, we express

no opinion on the merits of either qualified immunity or liability.

                                                C.

       A person may not be searched absent probable cause. When executing a search warrant,

officers must have particularized probable cause to search each person on the premises who is

not named in the warrant. Ybarra v. Illinois, 444 U.S. 85, 91 (1979). An officer may pat down

the outer clothing of a person to detect a weapon when the officer has reasonable suspicion based

on specific and articulable facts the person is armed and dangerous. Terry v. Ohio, 392 U.S. 1, 29

(1968). A Terry frisk may be conducted, and is often necessary, for an officer’s safety, but not to




                                                 5
discover contraband. Id. Where there is no reasonable suspicion to frisk a person for weapons,

the frisk cannot create probable cause for further search. Ybarra, 444 U.S. at 92-93.

        The District Court found genuine questions of fact whether officers had reasonable

suspicion to search plaintiffs. Plaintiffs allege they were subdued and secured at the time of the

search.2 Officer Eiserman testified “there was no other threat to me” when he frisked plaintiffs

“once [they] went to the ground.” Eiserman Depo. at 21:2-6. Since plaintiffs raised a genuine

dispute of material fact whether the officers had reasonable suspicion to search all of the

plaintiffs, we will affirm the denial of summary judgment.

                                                   D.

        The use of force must be justified by the circumstances. Graham v. Connor, 490 U.S.

386, 396 (1989). The standard is objective reasonableness:

        [F]actors include the possibility that the persons subject to the police action are
        themselves violent or dangerous, the duration of the action, whether the action takes
        place in the context of effecting an arrest, the possibility that the suspect may be armed,
        and the number of persons with whom the police officers must contend at one time... the
        physical force applied [by the officers]… the severity of the crime at issue, whether the
        suspect poses an immediate threat to the safety of the officers or others, and whether he is
        actively resisting arrest or attempting to evade
        arrest by flight.

Estate of Smith v. Marasco, 318 F.3d 497, 515 (3d Cir. 2003) (citing Sharrar v. Felsing, 128 F.3d

810, 821-22 (3d Cir. 1997), abrogated on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir.

2007)) (applying the Sharrar factors to evaluate unreasonable use of force in an arrest). If the use of

force is objectively unreasonable, officers are not entitled to qualified immunity. Couden v. Duffy,

446 F.3d 483, 497 (3d Cir. 2006).




2
 The evidence currently indicates all plaintiffs aside from Annette Covert and her
children were handcuffed on the ground prior to each search.
                                                   6
       On the factual record so far, the crime was not violent or severe (two small drug

purchases), at least nine officers controlled five adults and three children, no one resisted arrest

or attempted to flee, and the officers used lethal force.3 But the officers may have had reason to

believe someone in the barbershop could have been armed or dangerous, or posed an immediate

threat of danger. We recognize that drug raids are fraught with danger and that drug dealers are

often armed with deadly force. Because there are genuine questions of fact whether the officers

reasonably used force, we will affirm the denial of summary judgment.

                                                  E.

       An officer violates the Fourth Amendment when procuring a warrant if he or she made “a

false statement knowingly and intentionally, or with reckless disregard for the truth,… if the

allegedly false statement is necessary to the finding of probable cause.” Franks v. Delaware, 438

U.S. 154, 155-56 (1978). A warrant is not invalid if the affidavit provides probable cause absent

the false statements. Id. at 171-72. The warrant was based on Officer Scanlan’s affidavit,

allegedly reviewed by Sgt. Orr, stating three small bags of crack-cocaine were purchased in a

controlled drug buy on May 11, and a small bag of marijuana was purchased the morning of the

December 16 raid. Plaintiffs point to circumstantial evidence the December buy never occurred. 4

The District Court found the December buy was necessary to find probable cause for the search

warrant because the May purchase was too remote and involved small amounts of drugs. It also

found that plaintiffs raised a genuine dispute of fact whether Officer Scanlan and Sgt. Orr



3
  “[H]olding [a] gun to a person’s head and threatening to pull the trigger is a use of
deadly force.” Jacobs v. City of Chicago, 215 F.3d 758, 774 (7th Cir. 2000).
4
  Unlike the May 11 controlled buy there are no notes of the surveillance, no record of the
cash obtained for the controlled buy, no record of the purchased drugs, and the drugs
purchased could not be produced. In addition, officers testified the buy occurred between
10 a.m. and 12 p.m., but the warrant appears to have been signed 10:15 that morning.
                                                  7
provided false information that was material to the judicial finding of probable cause to issue the

search warrant. We will affirm the denial of summary judgment on this claim.

       Nevertheless, the District Court found no evidence “either Sergeant McDevitt or Officer

Eiserman might be culpable for false information in Officer Scanlan’s Affidavit.” Christian v.

Orr, No. 08-2397, 2011 WL 710209, at *9 n.35 (E.D. Pa. Mar. 1, 2011). The District Court’s

order should be amended to clarify that it granted Officer Eiserman and Sgt. McDevitt summary

judgment on the claim for procuring the search warrant.

                                             CONCLUSION

The District Court properly denied summary judgment on the various claims. The court should

clarify that its order granted summary judgment to Sgt. McDevitt and Officer Eiserman on the

claim for procuring a search warrant with false testimony.




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