                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-24-2007

Curley v. Klem
Precedential or Non-Precedential: Precedential

Docket No. 05-4701




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                                   PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
           _______________

                No. 05-4701
              _______________

             CORVET CURLEY;
             ELAINE CURLEY

                      v.

    RONALD KLEM, a Police Officer,
  SUED IN HIS INDIVIDUAL CAPACITY;
         JOHN DOE; BILL DOE,
      two currently unknown Police
         Officers also sued in their
           individual capacities

                 Corvet Curley,

                       Appellant
              _______________

On Appeal from the United States District Court
          for the District of New Jersey
             (D.C. No. 98-cv-05256)
District Judge: Honorable Katharine S. Hayden
                _______________
                    Argued March 27, 2007

   Before: FISHER, JORDAN and ROTH, Circuit Judges

                    (Filed: August 24, 2007)
                       _______________

David S. Gould [ARGUED]
Steven L. Salzman
Richard L. Huffman
David S. Gould, P.C.
61 Broadway - Suite 2820
New York, NY 10006
   Counsel for Appellant

Jeffrey M. Kadish, Esq. [ARGUED]
Morgan Melhuish Abrutyn
651 West Mount Pleasant Avenue - # 200
Livingston, NJ 07039-1673
   Counsel for Appellees

                       _______________

                  OPINION OF THE COURT
                      _______________

JORDAN, Circuit Judge.

       This civil rights suit, after a long and difficult history,
is before us for the second time. Plaintiff Corvet Curley
(“Curley”), an officer with the Port Authority of New York

                                 2
and New Jersey, and his wife, Elaine, sued defendant Ronald
Klem (“Klem”), a New Jersey State Trooper, under 42 U.S.C.
§ 1983, alleging that Klem violated Curley’s constitutional
rights by shooting him while both Curley and Klem were
responding to a police emergency at the George Washington
Bridge. The Curleys appeal from a judgment order of the
United States District Court for the District of New Jersey,
entered after a jury trial. The jury made various findings of
fact through special interrogatories, and stated by a verdict
sheet its conclusion that Trooper Klem had not acted
unreasonably under the circumstances. Based on those
findings, the District Court entered judgment in favor of Klem
on the basis of qualified immunity. For the reasons that
follow, we will affirm, albeit on different grounds.

                              I.

A.    Factual Background

        On the evening of November 20, 1997, at
approximately 8:45 p.m., Trooper Klem was on duty and
learned that a suspect, Deon Bailey (“Bailey”), had shot and
killed a Long Branch police officer and stolen a police car. A
follow-up radio transmission informed Klem that Bailey was
on the Garden State Parkway and had fired shots at a another
police car. Shortly after 9:00 p.m., Klem received another
transmission, this one saying that Bailey was now in a green
Toyota Camry he had stolen from a woman at a gas station.
A few minutes later, a further radio transmission described




                              3
Bailey as a “tall, black male”1 and stated that he was headed
north in the Camry on the New Jersey Turnpike. Klem and
several other troopers found Bailey on the Turnpike and
began chasing him, while Bailey shot at them. One of the
troopers in the chase was shot in the arm, and Klem’s
windshield was struck by a bullet.

        During the chase, Klem ended up as the nearest trooper
behind Bailey. He followed Bailey to the toll plaza at the
George Washington Bridge, where, according to his
testimony, he briefly lost sight of the Camry. He then saw the
Camry stopped on the far left side of the plaza. Klem stopped
his car about thirty yards back, and approached the Camry at a
jog. He testified that he was unaware of any other police
officers on the scene at that time, and that he did not wait for
back-up.

        Klem did not know that Bailey, upon arriving at the
toll plaza, had crashed the Camry at high speed into a Nissan
Pathfinder that was waiting in a toll lane. The crash sent the
Pathfinder spinning out into the toll plaza some thirty feet
from where the Camry had stopped. Immediately after the
crash, Bailey shot himself in the head. According to a toll

   1
     At the summary judgment stage of the case, Klem
claimed that the radio transmission described Bailey as a
“thin, black male” rather than a “tall, black male.” See Curley
v. Klem, 298 F.3d 271, 274 (3d Cir. 2002) (“Curley I”).
However, at trial, Klem stated that the transmission had
described the suspect as a “tall black male” and that he had
misheard it as “thin black male.”

                               4
booth attendant and another law enforcement officer, Bailey
was sprawled across the passenger seat of the Camry. The
toll booth attendant stated that he had no trouble seeing the
body. That same attendant next saw the two principal parties
in this dispute, Curley and Klem, approaching the ill-fated
scene.

        Curley was on duty that evening at the bridge. He was
in his Port Authority police uniform, although not wearing his
hat. He too had received a radio transmission stating that a
black male in a stolen vehicle was being pursued by the New
Jersey State Police, and was heading toward the bridge. By
now it was nearing 9:30 p.m. Curley went to the New York
side of the toll plaza in his marked police car, with both the
lights and sirens on. After reaching the plaza, he turned his
sirens off but left the lights on. He then saw a vehicle, which
he later learned was the stolen Camry, headed toward the toll
plaza at a high rate of speed, and he heard it crash into the
Pathfinder.

        Curley drove his car toward the Pathfinder and stopped
next to it. He looked over at the Camry, but had trouble
seeing inside of it because the front end was smashed. He
unholstered his gun, told the driver of the Pathfinder to stay in
his vehicle, and moved toward the Camry. Curley testified
that, at this point, he had his gun pointed toward the Camry.
Realizing that he did not have cover, Curley pointed his gun
at the ground, turned and began to move back toward his own
car.




                                5
        At approximately the same time that Curley was
investigating the scene, Klem approached the back of the
Camry with a shotgun in hand. He saw a toll collector
pointing toward the center of the toll plaza. Klem testified
that he had not heard any shots, and that all of the doors on
the Camry were closed. Klem approached the Camry from
the back right, and stopped by the right front passenger door,
close enough to the Camry to be able to touch it. He testified
that, as he approached the Camry, he looked into the rear seat
of the vehicle and into the front seat of the vehicle; he
testified that the air bags had deployed, and that the interior of
the Camry was filled with dust from the air bags. Klem stated
that, at that time, he did not see a body in the Camry and did
not see blood on the air bags or seat.

        Klem turned in the direction that the toll collector had
been pointing and saw a black male with a gun in his hand.
According to Klem, the man had both hands on the gun and
was pointing it directly at him. Klem testified that he
shouted three times for the man with the gun, who was, in
reality, Curley, to drop his gun. He also testified that Curley
raised and lowered his gun to point at Klem three times while
backpedaling away from Klem. Klem hesitated briefly, then
fired his shotgun,2 hitting Curley in the leg. Immediately after
he fired, someone screamed to him that he had just shot a cop.
Klem then looked into the Camry and saw Bailey’s body.

   2
     At his deposition, Klem testified that about thirty seconds
passed between the time he first saw Curley and the time he
fired his shotgun. At trial, he testified that only ten to fifteen
seconds had passed.

                                6
Klem testified that, had he earlier seen the body in the Camry,
he never would have shot Curley.3 Curley testified that he
never saw Klem and that he never heard anyone tell him to
drop his gun.

B.       Procedural Background

       Curley filed suit under 42 U.S.C. § 1983, alleging that
Klem used excessive force against him, in violation of the
Fourth Amendment.4 Curley’s wife joined in the complaint,
alleging loss of consortium. After discovery, the District
Court granted summary judgment in favor of Klem. It held
that Klem’s conduct was objectively reasonable and that he
was thus shielded by qualified immunity. See Curley I, 298


     3
   It is undisputed that Bailey had been alone, and that Klem
knew that.
     4
    “To state a claim for excessive force as an unreasonable
seizure under the Fourth Amendment, a plaintiff must show
that a ‘seizure’ occurred and that it was unreasonable.”
Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999) (citing
Brower v. County of Inyo, 489 U.S. 593, 599 (1989)). An
officer seizes a person whenever he “restrains the freedom of
a person to walk away[.]” Tennessee v. Garner, 471 U.S. 1, 7
(1985). Thus, there is “no question” that a shooting
constitutes a seizure under the Fourth Amendment. Id.
(“[T]here can be no question that apprehension by the use of
deadly force is a seizure subject to the reasonableness
requirement of the Fourth Amendment.”). The question that
remains is whether the shooting was reasonable.

                                 7
F.3d at 276 (recounting procedural history). Curley appealed,
and we reversed the summary judgment. See id. at 273-74. In
that opinion, we analyzed both the question of whether
Klem’s conduct had violated Curley’s constitutional rights,
and whether Klem was entitled to qualified immunity. We
did so recognizing – indeed we reiterated it no less than four
times in different ways – that, because we were reviewing a
decision on a summary judgment motion, we were required to
take the facts as Curley, the non-movant, had alleged them
and to view every fact and inference in the light most
favorable to Curley. See id. at 276-77; 279-80; 282-83.
Given that procedural perspective, we determined that Klem’s
actions would constitute an unreasonable seizure. Id. at 280.

       Next, we decided that, in the District Court’s qualified
immunity analysis, the Court had not recognized factual
disputes that precluded a grant of summary judgment. Id. at
281. Specifically, we noted that a number of facts, including
whether Klem looked inside the Camry and how Curley
behaved during the confrontation between him and Klem,
were disputed and required resolution by a jury. Id. at 281-
83. Thus, we remanded the case to the District Court for
resolution of the disputed facts by a jury. Id. at 283.

       On remand, the District Court held a jury trial and
submitted both special interrogatories and a liability verdict
sheet to the jury. In answer to the special interrogatories, the
jury found that, when Klem approached the Camry, Bailey’s
body was on the front seat of the car, not on the floorboards,
and that Klem did not look into the window of the car.
Furthermore, the jury found that Bailey’s body should have

                                8
been visible to someone standing in Klem’s position but that
Klem had not made an objectively reasonable effort to look
into the Camry. The jury also found that it was objectively
reasonable for Klem to believe that the toll collector was
signaling to the center of the plaza. Additionally, the jury
found that Curley did not repeatedly point his gun at Klem,
and that, when Curley was shot, he was not raising his gun to
point it at Klem. Finally, the jury could not reach a
unanimous decision and so did not answer whether Curley’s
police uniform was visible to someone in Klem’s position or
whether it was reasonable for Klem to believe that Curley was
in civilian clothing.

       In addition to the special interrogatories, the District
Court submitted to the jury a liability verdict sheet asking
whether Klem’s conduct was objectively reasonable. See
Curley v. Klem, 2006 WL 414093, at *2 (D.N.J. Feb. 21,
2006) (“Post-trial Opinion”). More precisely, the liability
verdict sheet contained four questions, three of which the jury
answered. Question One asked the jury whether “Trooper
Ron Klem’s failure to act in an objectively reasonable manner
in observing the Camry prevent[ed] him from seeing the
perpetrator’s body in the Camry?” Question Two asked “Did
Trooper Ron Klem act in an objectively reasonable manner in
shooting Officer Curley during the confrontation?” Question
Three asked “Was Trooper Ron Klem’s mistake in firing his
weapon objectively reasonable?” The fourth question, left
unanswered by the jury, asked whether “the plaintiff
suffer[ed] damages that were proximately caused by Trooper
Ron Klem’s conduct?”



                               9
       The jury answered yes to Question One, thus finding
that Klem’s failure to look in the Camry was not objectively
reasonable. However, the jury also found, in response to
Question Two, that Klem did act in an objectively reasonable
manner during the confrontation with Curley. Finally, in
response to Question Three, the jury found that Klem’s
mistake in firing his weapon was objectively reasonable.
Based on these findings, and with no separate analysis, the
District Court entered judgment for Klem, stating that Klem
was entitled to qualified immunity based on the jury’s answer
to Question Three, and also noting the jury’s answer to
Question Two.

        Curley moved for judgment as a matter of law or a new
       5
trial. In its opinion addressing those post-trial motions, the
District Court stated that the parties had agreed early in the
case “that the jury would decide the issue of qualified
immunity, and not the Court.” Id. at *4. On appeal, however,
Curley points to several places in the record where he
objected to the inclusion of Question Three on the liability
verdict sheet and where he argued that a determination of
qualified immunity was a question of law for the Court, not
the jury. See Joint Appendix at A125 (“A jury can contribute
fact finding to a qualified immunity question but not law
finding”); Trial Transcript at T113 (“[Counsel for Klem]
wants the jury to decide objectionable [sic] reasonableness

   5
    For purposes of the following discussion, when we speak
of Officer Curley taking certain legal positions, it should be
understood that his wife and co-plaintiff has also taken those
positions.

                              10
and then to decide whether there was a violation of the state
of the law. Which you called the second prong on qualified
immunity. And what is very clear is that no case ever did or
could submit that to the jury.”). Whether the District Court
misunderstood Curley’s position or Curley failed to make it
clear during the framing of the special interrogatories and the
verdict sheet, the objective reasonableness of Klem’s actions
was put to the jury.

        In support of his post-trial motions, Curley argued that
the jury’s general liability verdict was not supported by the
facts the jury had found in the special interrogatories and that
the verdict should therefore be overridden. He also argued
that the verdict could not stand because it was internally
inconsistent, since it faulted Klem’s action in not looking in
the Camry and yet stated that Klem’s behavior, including the
mistaken shooting, was reasonable. The District Court found
that the jury’s verdict was not inconsistent, and that the facts
found by the jury in the special interrogatories did not warrant
overturning the jury’s verdict for Klem. Post-trial Opinion,
2006 WL 414093, at *2-5.

        The District Court reasoned that Curley was attempting
to reduce the case “down to a handful of seconds in the
continuum of events.” Id. at *2. Rejecting that effort, the
District Court found that the relevant events spanned a
lengthy period, beginning at the time that Klem received the
first radio transmission about Bailey. Id. Thus, the Court
stated, although




                              11
       those seconds discussed by the Third Circuit are
       important, still they were singled out not
       because they were “the case,” but because this
       [District] Court erroneously saw them as
       unfolding only one way. That the jury decided
       otherwise, that it viewed some of the
       preshooting events contrary to Trooper Klem’s
       account, does not necessarily drive a
       determination that he acted unreasonably when
       he mistakenly shot Officer Curley.

Id. The District Court therefore found that there was no
inconsistency or tension between the jury’s answers to the
Special Interrogatories and its answers on the Liability
Verdict Sheet. Id. Characterizing Questions One and Two as
“General Liability” questions, the District Court held that
those questions did not present alternative theories of liability.
Id. at *5. The Court also held that the jury had decided in
Question Three that Klem was entitled to qualified immunity.
Id. at *3-5. Accordingly, the Court denied Curley’s motion
for judgment as a matter of law or a new trial. Id. at *5.

        Curley then filed this appeal. He raises five questions,
some of which are conceptually overlapping: (1) Whether the
District Court erred in putting to the jury the question of the
objective reasonableness of Klem’s mistake in shooting
Curley; (2) Whether the District Court erred in refusing to
treat the jury’s answers to special interrogatories as requiring
a verdict for Curley; (3) Whether the District Court likewise
erred in refusing to treat the jury’s answer to the first question
on the verdict sheet, which dealt with Klem’s failure to see

                                12
Bailey’s body in the Camry, as requiring a verdict for Curley
(Curley calls this his “first theory of liability”); (4) Whether
the District Court erred in refusing to enter a verdict for
Curley or to order a new trial based on Klem’s actions in the
confrontation and shooting (Curley’s “liability theory number
two”); and (5) Whether the District Court erred in refusing to
treat Curley’s two liability theories as alternatives that
necessitated a verdict for Curley if the jury agreed with either.

                               II.

      The District Court had jurisdiction over this case under
28 U.S.C. §§ 1331 and 1343, and entered final judgment on
September 29, 2005. This Court has jurisdiction over final
judgments of the District Court under 28 U.S.C. § 1291.

       The standard of review for a motion for judgment as a
matter of law is plenary. Lightning Lube, Inc. v. Witco Corp.,
4 F.3d 1153, 1166 (3d Cir. 1993) (“We exercise plenary
review of an order granting or denying a motion for judgment
as a matter of law and apply the same standard as the district
court.”). The standard of review on a motion for a new trial is
“abuse of discretion unless the court’s denial of the motion is
based on application of a legal precept, in which case our
review is plenary.” Honeywell, Inc. v. American Standards
Testing Bureau, Inc., 851 F.2d 652, 655 (3d Cir. 1988).




                               13
                              III.

A.     The Saucier Test for Qualified Immunity

        As we noted in Curley I, the claim here arises under 42
U.S.C. § 1983, which “provides a cause of action for any
person who has been deprived of rights secured by the
Constitution or laws of the United States by a person acting
under color of law.” 298 F.3d at 277. Police officers,
embodying the authority of the state, are liable under § 1983
when they violate someone’s constitutional rights, unless they
are protected by qualified immunity. Qualified immunity is
“the best attainable accommodation of competing values ... .”
Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). Since public
officials exercising discretionary powers may sometimes
abuse their discretion, the immunity is qualified, rather than
absolute, so that civil damages can serve as a restraint. At the
same time, the immunity incorporates a recognition that
“claims frequently run against the innocent as well as the
guilty – at a cost not only to the defendant officials, but to
society as a whole.” Id. While unproductive societal costs
may be unavoidable in a system that relies on private
litigation as one means to enforce our constitutional norms,
the aim of qualified immunity is to limit those costs to the
greatest practical degree. We do not want to let the threat of
litigation and personal liability “deter[] ... able citizens from
acceptance of public office[,]” nor do we want to “dampen the
ardor of all but the most resolute, or the most irresponsible
public officials, in the unflinching discharge of their duties.”
Id. (internal quotation marks, brackets, and citation omitted).
Hence, “[t]his immunity is broad in scope and protects ‘all but

                               14
the plainly incompetent or those who knowingly violate the
law.’” Couden v. Duffy, 446 F.3d 483, 501 (3d Cir. 2006)
(Weis, J., dissenting) (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986)).

        In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme
Court articulated a two step test for determining whether a
government official, such as a police officer, is entitled to
qualified immunity.6 In the first step, a court must address
whether “the officer’s conduct violated a constitutional
right[.]” Id. at 201. In an excessive force case, whether there
is a constitutional violation is “properly analyzed under the
Fourth Amendment’s ‘objective reasonableness’ standard[.]”
Graham v. Connor, 490 U.S. 386, 388 (1989). The relevant
inquiry is “the reasonableness of the officer’s belief as to the
appropriate level of force[,]” which “should be judged from
[the officer’s] on-scene perspective,” and not in the “20/20
vision of hindsight.” Saucier, 533 U.S. at 205 (internal
citations and quotation marks removed).




   6
    Saucier was not the first time the Court had framed the
analysis in two parts, see Siegert v. Gilley, 500 U.S. 226, 232
(1991) (“A necessary concomitant to the determination of
whether the constitutional right asserted by a plaintiff is
‘clearly established’ at the time the defendant acted is the
determination of whether the plaintiff has asserted a violation
of a constitutional right at all.”), but it is the decision that has
become synonymous with the current approach to qualified
immunity analysis.

                                 15
        That reasonableness inquiry requires “careful attention
to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490 U.S. at
396. The analysis “requires a careful balancing of the nature
and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental
interests at stake.” Id. (citations and internal quotation marks
omitted). The balancing must be conducted in light of the
facts that were available to the officer. See Maryland v.
Garrison, 480 U.S. 79, 85 (1987) (“[W]e must judge the
constitutionality of [the officers’] conduct in light of the
information available to them at the time they acted.”). It is,
in other words, a “totality of the circumstances” analysis. See
Curley I, 298 F.3d at 279 (assessing objective reasonableness
of defendant’s actions on basis of totality of the
circumstances); cf. Graham, 490 U.S. at 396 (proper
application of reasonableness test used to analyze a claimed
violation of Fourth Amendment right against unreasonable
seizure “requires careful attention to the facts and
circumstances of each particular case”); Abraham, 183 F.3d at
289 (“How much force is permissible to effectuate an arrest ...
is determined based on the ‘totality of the circumstances.’”).

       “If, and only if, the court finds a violation of a
constitutional right,” Scott v. Harris, 127 S. Ct. 1769, 1774
(2007), the court moves to the second step of the analysis and
asks whether immunity should nevertheless shield the officer



                              16
from liability.7 The question at this second step is whether the
right that was violated was clearly established, or, in other
words, “whether it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 202. The Court explained that, again,
“this inquiry ... must be undertaken in light of the specific
context of the case, not as a broad general proposition.” Id. at
201. The Court went on to emphasize that even where
reasonableness is a part of the inquiry for both the
constitutional question and for qualified immunity, as it is in
an excessive force case, the inquiries remain distinct. Id. at
204-05. “The concern of the immunity inquiry is to
acknowledge that reasonable mistakes can be made as to the
legal constraints on particular police conduct.” Id. at 205.

       Thus, the first step of the analysis addresses whether
the force used by the officer was excessive, and therefore
violative of the plaintiff’s constitutional rights, or whether it
was reasonable in light of the facts and circumstances
available to the officer at the time. This is not a question of
immunity at all, but is instead the underlying question of
whether there is even a wrong to be addressed in an analysis
of immunity. The second step is the immunity analysis and
addresses whether, if there was a wrong, such as the use of
excessive force, the officer made a reasonable mistake about
the legal constraints on his actions and should therefore be
protected against suit

   7
   As further explained herein, infra at sections IV.B and
IV.C, we do not have occasion to reach that second step here,
because no constitutional violation occurred in this case.

                                17
        While the Saucier analytical approach has been
criticized for being unduly rigid and demanding resolution of
constitutional issues when cases could be more simply
disposed of on other grounds, see, e.g., Los Angeles County,
California v. Rettele, 127 S. Ct. 1989, 1994 (2007) (Stevens,
J., dissenting) (discussing the “unwise practice of deciding
constitutional questions in advance of the necessity for doing
so.”); Scott, 127 S. Ct. at 1774 n.4 (recounting criticisms of
Saucier); P. Leval, Judging Under the Constitution, 81 NYU
L. Rev. 1249, 1275-81 (2006) (describing Saucier as
requiring courts to engage in “a puzzling misadventure in
constitutional dictum”), its order of inquiry nevertheless
remains mandatory. Scott, 127 S. Ct. at 1774 n.4 (declining
to “address the wisdom of Saucier”).

B.     Evolving Approaches to Applying the Test

        The length of the foregoing review notwithstanding,
the two-step Saucier test can be stated simply. Its application,
however, presents perplexing logical and practical problems.
The point of immunity is to protect someone from the burden
imposed by litigation itself. It is supposed to be “an immunity
from suit rather than a mere defense to liability ... .” Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985) (original emphasis).
Hence, the Supreme Court has instructed that “[i]mmunity
ordinarily should be decided by the court long before trial.”
Hunter v. Bryant, 502 U.S. 224, 228, (1991). That is well and
good when there are no factual issues in a case, but often the
facts are intensely disputed, and our precedent makes clear
that such disputes must be resolved by a jury after a trial.
E.g., Estate of Smith v. Marasco, 430 F.3d 140, 152-53 (3d

                               18
Cir. 2005); Curley I, 298 F.3d at 278; Reitz v. County of
Bucks, 125 F.3d 139, 147 (3d Cir. 1997). As a practical
matter, then, in such cases the immunity becomes no more
than a mere defense, Sloman v. Tadlock, 21 F.3d 1462, 1468
n.6 (9th Cir. 1994), and a sometimes challenging one to
establish at that.

       The fundamental challenge lies in the nature of the
questions that compose the test. Since they are mixed
questions of law and fact, one is left to ask who should
answer them. As we noted in Curley I, “[a] disparity of
opinion exists among our sister circuits as to whether a judge
or jury should make the ultimate immunity determination.”
298 F.3d at 278 n.3. The First, Fourth, Seventh, and
Eleventh Circuits have all indicated that qualified immunity is
a question of law reserved for the court.8 The Fifth, Sixth,

   8
     See Rodriguez-Marin v. Rivera-Gonzalez, 438 F.3d 72,
83 (1st Cir. 2006) (“While preliminary factual questions
regarding qualified immunity are sent to the jury, the legal
question of the availability of qualified immunity is ultimately
committed to the court’s judgment.”) (internal quotation
marks omitted); Willingham v. Crooke, 412 F.3d 553, 560
(4th Cir. 2005) (“The issue having now come before us, we
hold that the legal question of a defendant’s entitlement to
qualified immunity under a particular set of facts should be
decided by the court, not by the jury.”); Riccardo v. Rausch,
375 F.3d 521, 526 (7th Cir. 2004) (“Immunity, however, is a
matter of law for the court, to be decided without deference to
the jury’s resolution-and preferably before the case goes to
the jury.”); Johnson v. Breeden, 280 F.3d 1308, 1318 (11th

                              19
Ninth, and Tenth Circuits have permitted the question to go to
juries.9 Precedent from the Second and Eighth Circuits can be


Cir. 2002) (“When the case goes to trial, the jury itself
decides the issues of historical fact that are determinative of
the qualified immunity defense, but the jury does not apply
the law relating to qualified immunity to those historical facts
it finds; that is the court’s duty.”).
   9
     See McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir.
2000) (“while qualified immunity ordinarily should be
decided by the court long before trial, if the issue is not
decided until trial the defense goes to the jury which must
then determine the objective legal reasonableness of the
officers’ conduct.”); Champion v. Outlook Nashville, Inc., 380
F.3d 893, 900 (6th Cir. 2004) (“The issue of whether qualified
immunity is applicable to an official’s actions is a question of
law. However, where the legal question of qualified
immunity turns upon which version of the facts one accepts,
the jury, not the judge, must determine liability.”) (internal
citations and quotation marks omitted); Ortega v. O’Connor,
146 F.3d 1149, 1156 (9th Cir. 1998) (finding no error in “the
district court’s ‘extra’ reasonableness test, which ...
constituted an appropriate and proper instruction to the jury
on the second prong of the defendants’ qualified immunity
defense-whether a reasonable state official could have
believed his conduct was lawful-the prong as to which the
existence of factual disputes requires the jury’s
determination.”); Maestas v. Lujan, 351 F.3d 1001, 1010
(10th Cir. 2003) (“In short, the disputed issues of material fact
concerning the objective reasonableness of Mr. Lujan’s

                               20
viewed as being on both sides of the issue, with the evolution
being toward reserving the question for the court.10


actions are dispositive of the qualified immunity issue.
Further, as stated above, Mr. Lujan retained the defense of
immunity from liability even though the jury was needed to
resolve issues of objective legal reasonableness. Therefore,
the district court properly presented the reasonableness
element of the qualified immunity analysis to the jury.”).
   10
      Compare Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir.
2003) (“We believe that use of special interrogatories in this
case resolves the difficulty of requiring the jury to decide
‘what the facts were that the officer faced or perceived’ and
requiring the court to make the ultimate legal determination of
whether qualified immunity attaches on those facts.”) with
Oliveira v. Mayer, 23 F.3d 642, 650 (2d Cir. 1994) (“The
District Court should have let the jury (a) resolve these factual
disputes and (b) based on its findings, decide whether it was
objectively reasonable for the defendants to believe that they
were acting within the bounds of the law when they detained
the plaintiffs.”); see also Kerman v. City of New York, 374
F.3d 93, 109 (2d Cir. 2004) (discussing roles of judge and
jury in qualified immunity analysis, and citing both
Stephenson and Oliveira). Compare Littrell v. Franklin, 388
F.3d 578, 585 (8th Cir. 2004) (“Where, as in this case, factual
questions prevent a district court from ruling on the issue of
qualified immunity, it is appropriate to tailor special
interrogatories specific to the facts of the case. This practice
allows the jury to make any requisite factual findings that the
district court may then rely upon to make its own qualified

                               21
        Our precedents too have evolved. Our recent
precedents say that the court, not a jury, should decide
whether there is immunity in any given case. E.g., Harvey v.
Plains Twp. Police Dept., 421 F.3d 185, 194 n.12 (3d Cir.
2005); Carswell v. Borough of Homestead, 381 F.3d 235, 242
(3d Cir. 2004); Doe v. Groody, 361 F.3d 232, 238 (3d Cir.
2004). But that was not always our counsel. We had
previously permitted the jury to answer the key immunity
question of whether the challenged behavior of a government
official was objectively reasonable. In Sharrar v. Felsing,
128 F.3d 810, 830-31 (3d Cir. 1997), we referred with
approval to our earlier decision in Karnes v. Skrutski, 62 F.3d
485 (3d Cir. 1995), characterizing it as holding that, “a factual
dispute relating to qualified immunity must be sent to the jury,
and suggest[ing] that, at the same time, the jury would decide
the issue of objective reasonableness.” Sharrar, 128 F.3d
830-31.


immunity ruling. Special interrogatories related to the
qualified immunity defense are not improper per se, but they
must be carefully crafted so that the fact-finder’s role is
limited to determining whether the underlying facts are as the
plaintiff has alleged or proved.”) (internal citations and
quotation marks omitted) with Turner v. Arkansas Ins. Dept.,
297 F.3d 751, 754 (8th Cir. 2002) (in discussing an official’s
burden to come forward with “undisputed and material facts
that demonstrate that his actions were reasonable under the
circumstances[,]” the Court stated that “[i]f such facts are
undisputed, then that is a question of law to be reviewed by a
court; if not, then it is a question for a jury and summary
judgment is improper.”)

                               22
        Later, in Curley I, we cited Sharrar for the proposition
“that a jury can evaluate objective reasonableness when
relevant factual issues are in dispute.”11 298 F.3d at 279. We
also went on to say, however, that it would not be
inappropriate “for a judge to decide the objective
reasonableness issue once all the historical facts are no longer
in dispute[,]” and we suggested the use of special
interrogatories as a means to that end. Id.

        Finally, in a line of cases beginning with Doe v.
Groody, we began highlighting that “qualified immunity is an
objective question to be decided by the court as a matter of
law.” Carswell, 381 F.3d at 242 (citing Doe, 361 F.3d at
238). In Carswell, we elaborated on that point. We explained
that the jury “determines disputed historical facts material to
the qualified immunity question[,]” and we again suggested
that “District Courts may use special interrogatories to allow
juries to perform this function,” id. (citing Curley I, 298 F.3d
at 279). We emphasized that “[t]he court must make the
ultimate determination on the availability of qualified
immunity as a matter of law.” Id. That emphasis reemerged
in Harvey, when we cited Carswell and Doe for the


   11
      We are not suggesting that the objective reasonableness
of an officer’s view of the law may be submitted to the jury.
Rather, we are recognizing that, when material issues of fact
are in dispute, our past precedents, in particular Karnes,
Sharrar, and Curley I, have allowed the jury to resolve those
disputes and also to determine the objective reasonableness of
the officer’s conduct in light of the facts.

                               23
proposition that qualified immunity is purely a question of
law to be answered by the court. 421 F.3d at 194 n.12.

        It appears that much of the discussion in Carswell was
dicta, since we were actually affirming in that case the grant
of judgment for the defendant as a matter of law, following
the presentation of the plaintiff’s case at trial. 381 F.3d at
239, 245. In a technical sense, then, the dicta is not binding.
See Abdelfattah v. United States Dept. of Homeland Security,
488 F.3d 178, 185 (3d Cir. 2007) (“While ‘[i]t is the tradition
of this court that the holding of a panel in a precedential
opinion is binding on subsequent panels,’ Internal Operating
Procedure 9.1, it is also well established that we are not bound
by dictum in an earlier opinion.”) (citing Mariana v. Fisher,
338 F.3d 189, 201 (3d Cir. 2003)). It has nevertheless been
repeated and understood as a definitive direction on the
respective roles of judge and jury when a qualified immunity
defense is raised. See, e.g., Johnson v. Anhorn, 416 F. Supp.
2d 338, 361 (E.D. Pa. 2006) (“[Q]ualified immunity is an
objective question to be decided by the court as a matter of
law... . The jury, however, determines disputed historical
facts material to the qualified immunity question.”) (quoting
Carswell, 381 F.3d at 242); Iwanejko v. Cohen & Grigsby,
P.C., 2006 WL 2659109, at *9 (W.D. Pa. Sept. 15, 2006)
(quoting Carswell and stating, “in the Third Circuit ‘qualified
immunity is an objective question to be decided by the Court
as a matter of law.’”); Brown v. City of Camden, 2006 WL
2177320, at *7 (D.N.J. July 27, 2006) (citing Carswell and
saying “In this Circuit, the Court must make the ultimate
determination on the availability of qualified immunity as a
matter of law.”).

                              24
       There is some irony in this, since Carswell relied on
Curley I and Sharrar, correctly citing them as support for the
proposition that objective reasonableness is a question of law.
But neither Curley I nor Sharrar stand for the related
proposition that the question of objective reasonableness
cannot be presented to a jury. Indeed they both teach “that a
jury can evaluate objective reasonableness when relevant
factual issues are in dispute.” Curley I, 298 F.3d at 279; see
also Sharrar, 128 F.3d at 830-31.

        Nevertheless, the Carswell approach, despite its
limitations, see infra at section III. C., appears to have taken
root and to represent the pattern and practice both in our
Circuit and much of the rest of the country. We therefore take
the opportunity to reiterate and clarify a central message from
that case: whether an officer made a reasonable mistake of
law and is thus entitled to qualified immunity is a question of
law that is properly answered by the court, not a jury.
Carswell, 381 F.3d at 242. When a district court submits that
question of law to a jury, it commits reversible error.

      Question Three on the liability verdict sheet was
evidently intended to reach the question of qualified
immunity.12 However, as we discuss further below, the

   12
     We acknowledge again that our language in Curley I left
open the possibility of giving that question to the jury.
Discussing “the procedure for deciding the immunity question
when the existence of disputed issues of fact precludes
disposition on summary judgment,” 298 F.3d at 278, we
stated:

                              25
       We addressed the issue in Sharrar, in which we
       observed that the “reasonableness of the
       officers' beliefs or actions is not a jury
       question,” 128 F.3d at 828, but qualified that
       observation by later noting that a jury can
       evaluate objective reasonableness when relevant
       factual issues are in dispute, id. at 830-31. This
       is not to say, however, that it would be
       inappropriate for a judge to decide the objective
       reasonableness issue once all the historical facts
       are no longer in dispute. A judge may use
       special jury interrogatories, for instance, to
       permit the jury to resolve the disputed facts
       upon which the court can then determine, as a
       matter of law, the ultimate question of qualified
       immunity.

Id. at 279. We cannot fault the District Court for following
our instructions on remand. Unlike our dissenting colleague,
we do not view Curley I as making “clear the respective roles
of the judge and jury in cases such as this,” post at 18. To the
extent Curley I can be read as allowing the District Court to
submit the question of qualified immunity to the jury we are
hard pressed to say the District Court erred in doing so. We
hope, however, that it will now be clear that the second step in
the Saucier analysis, i.e., whether an officer made a
reasonable mistake about the legal constraints on police action
and is entitled to qualified immunity, is a question of law that
is exclusively for the court. When the ultimate question of the
objective reasonableness of an officer’s behavior involves

                              26
question as framed actually pertains to whether there was any
constitutional violation at all. Since it properly presented an
essentially factual question regarding the constitutional
violation, it was not error for the jury to consider it.

C.        The Challenge of Preserving “Totality of
          Circumstances” Review

       As this case demonstrates, trying to separate the
ultimate from the underlying questions is no easy matter and
can have a disturbing, unintended consequence. It can
undermine the basic principle that both the threshold
constitutional question and the immunity question are to be
decided on the totality of the circumstances.

       Fundamental fairness dictates a totality-of-the-
circumstances review, since the test for reasonableness “is not
capable of precise definition or mechanical application,” Bell
v. Wolfish, 441 U.S. 520, 559 (1979). It depends on all of the
chaotic details that emerge in real time in real life.13 Yet the


tightly intertwined issues of fact and law, it may be
permissible to utilize a jury in an advisory capacity, see infra
at sec. III.C., but responsibility for answering that ultimate
question remains with the court.

     13
      We have here a fundamental parting of the ways with the
dissent. While our colleague sees this case as coming down
to, to use her analogy, one domino in the sequence of events,
post at 12, we feel compelled to recognize that reality is a

                                27
method that we and many other courts have taken to address
the mixed legal and factual questions posed by the Saucier
test cannot easily, perhaps cannot ever, capture those
circumstances in their totality. When one picks and chooses a
few questions to pose to a jury to ferret out historical facts,
staying away from asking the broader question of what
constitutes reasonable behavior under those facts, one cannot
help but focus attention on some events to the diminution or
exclusion of others. In short, a totality-of-the-circumstances
test is replaced by a test focusing on those few circumstances
featured in the questions a court is able and willing to
articulate.

        The District Court clearly saw that problem in this
case. As quoted before, the judge observed that the analysis
in this case could not properly be shrunk into the few
moments immediately before Klem shot Curley, but instead
must be decided in light of all the events which had taken
place over the course of the entire evening. Post-trial
Opinion, 2006 WL 414093, at *2. The desire to avoid the
kind of difficulty presented here is perhaps what has
motivated other courts to sanction the alternative approach of
permitting the question of objective reasonableness to go to
juries. See Sloman, 21 F.3d at 1468 (“[S]ending the factual
issues to the jury but reserving to the judge the ultimate
‘reasonable officer’ determination leads to serious logistical
difficulties. Special jury verdicts would unnecessarily



good deal more complicated than the simple causality evident
in falling dominoes.

                              28
complicate easy cases, and might be unworkable in
complicated ones.”).

        In spite of the foregoing problem inherent in
articulating specific questions to address factual issues, our
most current precedent counsels that course.14 However,
while the judge must make the ultimate determination
regarding the objective reasonableness of challenged
behavior, that does not mean that the use of an advisory jury
is foreclosed. We need not consider the propriety of such a
step under the circumstances presented here, though, because
the jury in this case was not acting in an advisory capacity.
The Court put to the jury the question of the objective
reasonableness of Klem’s actions, and the Court upheld the
verdict rendered.

   14
     We note that in the Supreme Court’s recent decision in
Scott, 127 S. Ct. 1769 (2007), the Court stated that, because
the case “was decided on summary judgment, there [had] not
yet been factual findings by a judge or jury ... .” Id. at 1774
(emphasis added). Without wanting to read too much into
that statement, since it may refer to nothing more than a case
in which the parties waive any right to a jury, it appears the
Court at least contemplated a circumstance where a judge may
resolve factual issues. Certainly the dissent in Scott was
concerned about judicial fact finding. See id. at 1781
(Stevens, J., dissenting) (“Relying on a de novo review of a
videotape ..., eight of the jurors on this Court reach a verdict
that differs from the views of the judges on both the District
Court and the Court of Appeals who are surely more familiar
with the hazards of driving on Georgia roads than we are.”).

                              29
                              IV.

A.     The Jury Was Not Choosing Between Alternative
       Theories of Liability

        The jury was not facing a choice of alternative liability
theories driven by “outcome-determinative facts,” as Curley
would have it. See Post-trial Opinion, 2006 WL 414093, at
*4. The District Court rightly rejected that view. We did not,
in Curley I, presume to set forth any theories of liablilty, let
alone the strict alternatives Curley characterizes our opinion
as requiring. We simply identified “disputed issues of
material fact with regard to at least two key events – the
inspection of the suspect’s vehicle and the actual
confrontation between Klem and Curley.” 298 F.3d at 281.
As Curley sees it, resolution of the factual issues in his favor
was not merely a necessary condition for him to prevail, it
was an entirely sufficient condition. But that was never so.
Our pointing to “at least two key events[,]” id. (emphasis
added), accurately implied that there were more facts on the
table than the two areas of dispute we singled out for
discussion. Consistent with our own cases and with precedent
from the Supreme Court, we could not have directed the
District Court to ignore the totality of the circumstances and
to focus instead on those two areas.

       Even if those specifically identified factual areas were
the only ones to be considered, it is an unwarranted leap to
say that the jury’s responses to selected yes-or-no questions
means that only one set of inferences and conclusions can be

                               30
drawn from those responses. For example, the jury’s answer
of “no” to the question of whether “Officer Curley raise[d] his
gun to point directly at Trooper Ron Klem several times
during ‘the confrontation’” might mean that the jury decided
that Curley had raised his gun to point at Klem only once or
twice, rather than “several times,” as the question asks.15 One
need not draw the inference that Curley demands. Indeed, we
cannot. Though multiple inferences are possible, we must
draw all inferences in Klem’s favor, rather than Curley’s,
since we are reviewing a verdict for Klem. See McGreevy v.
Stroup, 413 F.3d 359, 364 (3d. Cir. 2005) (on a motion for
judgment as a matter of law under Federal Rule 50(a),
evidence must be viewed “in the light most favorable to the
nonmoving party”). In short, any ambiguity in the
interrogatories and the answers to them must, at this stage, be
interpreted against Curley. The District Court therefore did
not err in rejecting Curley’s “alternative theories of liability”
view of the verdict sheet.

B.        The Focus Should Have Been on the Threshold
          Question

        Where the District Court did go astray was in assuming
that a constitutional violation had occurred and then applying
its efforts to answering the question of immunity. The
Court’s confusion appears to have been the product both of

     15
     Given that Curley acknowledged pointing the gun in the
direction of the Camry and that Klem was standing next to the
car, it is not fanciful to believe that the jury could have
interpreted the question as described.

                               31
language in our Curley I opinion and of the intertwined
questions of objective reasonableness posed by the two
prongs of the Saucier test when applied to this case.

        The panel in Curley I addressed the question of
whether Klem’s conduct violated Curley’s constitutional
rights in the summary judgment context, and thus
“consider[ed] only the facts alleged by Curley, taken in the
light most favorable to him.” Curley I, 298 F.3d at 280. In
determining that, under Curley’s version of the facts, he had
established a violation of his constitutional rights, we said:

       [T]hese facts, viewed in the light most favorable
       to Curley, are sufficient to support the claim
       that Klem’s shooting of Curley constituted an
       unreasonable seizure, violative of Curley’s
       rights under the Fourth Amendment. ... [W]e
       find that under Curley’s account of events, it
       was unreasonable for Klem to fire at Curley
       based on his unfounded, mistaken conclusion
       that Curley was the suspect in question.

Id. at 280 (emphasis added). The District Court apparently
read our opinion as establishing that Curley’s constitutional
rights were violated. In its ruling on post-trial motions, the
District Court stated that “there was a constitutional violation
in that Officer Curley had a right not to be shot by Trooper
Klem.” 2006 WL 414093, at * 1. That, however, is an
oversimplification and a misreading of Curley I. Whether
Klem committed a constitutional tort turns not on the simple
fact that he shot the wrong man. That would end the inquiry

                               32
before it began. The question is whether Klem’s use of force,
even though mistakenly directed, was objectively reasonable
in light of the totality of the circumstances. That question had
yet to be answered when Curley I was decided, since a trial
was required. There is no substitute for “slosh[ing one’s] way
through the factbound morass of ‘reasonableness.’” Scott,
127 S. Ct. at 1778.

       Thus, our earlier opinion was not a decision on
whether, under all of the facts and circumstances of the case,
Klem’s conduct violated Curley’s constitutional rights. The
jury was not bound at trial, and the District Court was not
bound post-trial, by our earlier statements involving a
hypothetical set of facts favoring Curley, since the facts and
inferences actually found by the jury were clearly different
than those which we were required to posit in Curley I when
considering the summary judgment order.16


   16
      The procedural posture of Curley I provides another key
reason why we cannot agree with the dissent. Our colleague
takes as a given that Curley I established alternative theories
of liability based on a “simple syllogism,” post at 13-14, but
Curley I was in a procedural posture that required every
inference to be drawn for Curley. It thus did not present an
opportunity to frame a set of factual questions to constrain the
jury’s fresh look at the evidence. The jury was not
constrained by the Curley I opinion’s necessarily biased view
of the facts, and the jury was therefore free to consider the
entire set of facts facing Klem when determining whether
Klem’s conduct violated Curley’s constitutional rights.

                               33
        Confusion between the threshold constitutional inquiry
and the immunity inquiry is also understandable given the
difficulty courts have had in elucidating the difference
between those two analytical steps.17 At the risk of
understating the challenges inherent in a qualified immunity
analysis, we think the most helpful approach is to consider the
constitutional question as being whether the officer made a
reasonable mistake of fact, while the qualified immunity
question is whether the officer was reasonably mistaken about
the state of the law.

        With that in mind, we turn to the questions presented
to the jury in this case. The constitutional liability question
posed to the jury, Question Two on the verdict sheet, was
“Did Trooper Ron Klem act in an objectively reasonable
manner in shooting Officer Curley during the confrontation?”
Question Three, designed as the immunity question, was
posed as, “Was Trooper Ron Klem’s mistake in firing his
weapon objectively reasonable?” The difference between
those two questions is essentially semantic, the only
difference being that Question Three makes explicit what was


   17
     The Saucier opinion itself was generated by the
confusion inherent in such conceptually close questions. See
Saucier, 533 U.S. at 197 (“The matter we address is whether
the requisite analysis to determine qualified immunity is so
intertwined with the question whether the officer used
excessive force in making the arrest that qualified immunity
and constitutional violation issues should be treated as one
question, to be decided by the trier of fact.”).

                              34
already obvious and conceded in the case: that the shooting
was a mistake.

        For practical purposes, then, the analysis of objective
reasonableness that the District Court undertook under the
rubric of an immunity question actually applies better to the
preliminary constitutional question. The immunity step of the
Saucier test is typically focused on established legal standards
and requires a review of relevant case law, a review a jury
simply cannot undertake. See Saucier, 533 U.S. at 205 (“The
concern of the immunity inquiry is to acknowledge that
reasonable mistakes can be made as to the legal constraints on
particular police conduct.”). However, the constitutional
analysis focuses on the factual circumstances of the incident
and asks whether the officer made a reasonable mistake of
fact. Question Three did exactly that. It asked not whether
Trooper Klem made a mistake of law – wrongly believing that
it was legal to shoot the wrong person – but whether it was
reasonable for him to make the factual mistake of believing
Officer Curley was the armed and dangerous Bailey.
Therefore, if the jury properly determined that Klem made an
objectively reasonable mistake when he shot Curley, then it
found that there was no constitutional violation, and the
District Court did not err in entering a verdict in favor of




                              35
Trooper Klem.18 We turn now to that question of the
sufficiency of the evidence.

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

        The jury’s verdict on the objective reasonableness of
Trooper Klem’s actions is well supported by the record.
There are many facts that the jury was entitled to rely on that
were not in dispute, including Bailey’s behavior prior to and
during the high speed car chase that led to the George
Washington Bridge. Bailey had shot and killed a police
officer, had shot at another officer, had stolen a police car,
had then carjacked the Camry from a rest stop on the New
Jersey Turnpike, had launched a high speed chase on the
Turnpike and, during that chase, had fired shots at Klem and
other officers, wounding an officer and hitting Klem’s
windshield. Furthermore, whether or not Klem knew exactly
what had occurred, no one disputes that he came on the scene
in the immediate aftermath of Bailey’s creating additional
havoc by crashing into the Pathfinder. In short, no one

     18
     The fact that the District Court relied on Question Three
as answering the qualified immunity question and entered a
verdict based on Trooper Klem deserving qualified immunity
is not reversible error. Because Trooper Klem was entitled to
a verdict in his favor either if there was no constitutional
violation or if he was entitled to qualified immunity, the error
in the District Court’s analysis was harmless. Hill v. Laisz,
435 F.3d 404, 411 (3d Cir. 2006) (holding that error is
harmless where it is “highly probable” that the error did not
affect the outcome of the case).

                                36
disputes that Bailey was actively evading arrest after
committing several severe crimes, that he posed a serious
danger to both the police and public, and that Klem could
properly approach the scene prepared to use deadly force. In
fact, Curley himself did so. He testified that, when he began
to approach the Camry, his gun was drawn.

        The very real danger that both Curley and Klem
perceived at the toll plaza was intensified by the presence of
numerous innocent bystanders. Curley’s solicitude for the
safety of the driver of the Pathfinder is not just commendable;
it reflects the well-founded fear that people who got out of
their cars were in danger of being shot. Added to all of this is
the jury’s finding that, when Klem approached the wrecked
Camry, he saw a toll booth attendant signaling him to look to
the middle of the toll plaza. That is where Curley was
standing with a gun in his hands.

       In Curley’s view, none of those facts is of any moment,
since Klem’s failure to look into the Camry is dispositive.
According to Curley, had Klem looked, he would have seen
Bailey’s dead body and there would have been no
confrontation.19 However, as we have stated several times,

   19
      This, of course, is the dissent’s view as well, post at 11-
12, and we do not suggest that this is illogical, only that it is
not the exclusively logical view. We stated in Curley I that
Klem knew there was only one suspect and, “had Klem
known of Bailey’s suicide, it would have been clearly
unreasonable for him later to confuse Curley with the
suspect.” 298 F.3d at 281. Hence, the question of whether

                                37
the reasonableness of Klem’s conduct must be examined
based on the totality of the circumstances, and the inquiry
cannot be collapsed into a single instant, particularly not
when, at that instant, Klem’s vision was being drawn by the
toll booth attendant toward Curley, standing in the plaza with
a gun.20 Thus, when we examine all of the facts and
circumstances, the jury’s verdict that Klem acted reasonably
is supported by the evidence.


Klem looked in the Camry is highly relevant. But it is not
outcome determinative. We did not equate looking in the
Camry with knowledge of Bailey’s death, since it was
conceivable that a factfinder could have decided that an
objectively reasonable officer could look in the Camry and
still not see Bailey, no matter how obvious the body might
have been to others not in that officer’s unique position. It
was also conceivable that a factfinder could conclude, as the
jury apparently did, that despite Klem’s overlooking
information that could have enlightened him about the
suicide, his actions in totality and under the pressure of the
moment were such that his failure to look in the car did not
make the shooting objectively unreasonable.
   20
     The jury’s conclusion that Klem’s failure to look into the
Camry was unreasonable is not beyond dispute. Given all
else that had occurred and was occurring, it can be argued that
looking at the gesticulating toll booth attendant, rather than
into the car, may not have been the most reasonable action but
was still within the bounds of reason. However, since we are
upholding the verdict on other grounds, we do not address
that issue.

                              38
         The mistake Klem made has undoubtedly been terrible
in its long-term consequences for Officer Curley and his
family, and we do not for a moment discount the pain, sorrow,
expense, and frustration that it has visited on them in their
innocence. But a mistake, though it may be terrible in its
effects, is not always the equivalent of a constitutional
violation. In Curley I, we acknowledged “the great pressure
and intensity inherent in a police officer’s hot pursuit of a
suspect known to be armed and highly dangerous ... .” 298
F.3d at 280. That would amount to little more than lip
service, were we to reverse the jury’s verdict and the District
Court’s thoughtful decision on the post-trial motions.
“[P]olice officers are often forced to make split-second
judgments – in circumstances that are tense, uncertain, and
rapidly evolving – about the amount of force that is necessary
in a particular situation.” Graham, 490 U.S. at 397. Those
were the circumstances facing both Trooper Klem and Officer
Curley at the George Washington Bridge toll plaza. Viewed
from that perspective, Saucier, 533 U.S. at 205, the seizure
effected by the mistaken shooting was not unreasonable under
the Fourth Amendment. It therefore was not a constitutional
violation.

                              V.

       For the foregoing reasons, we will affirm the judgment
of the District Court on the ground that no constitutional
violation occurred.


              CURLEY v. KLEM (“Curley II”)

                              39
                     No. 05-4701


ROTH, Circuit Judge, dissenting:

        The jury’s findings make clear that, were it not for
Trooper Klem’s unreasonable actions, the tragic shooting of
Officer Curley would never have occurred. In the special
interrogatories, the jury found that the sole perpetrator was dead
and visibly sprawled across the passenger seat of the Camry at
the time Klem approached it, and that Klem came within an
arm’s length of the Camry’s passenger side window, yet failed
to look into the car to check for the perpetrator’s body. Klem
admitted at trial that, had he looked into the Camry and seen the
perpetrator lying there, Klem would not have confronted and
shot Curley. Klem would have holstered or lowered his gun,
thus breaking the chain reaction of events leading to the
shooting, and Curley would have walked away unharmed. In
Question 1 of the liability verdict sheet, the jury had to decide
whether Klem’s failure to break the chain reaction – by failing
to look into the Camry – was an objectively reasonable mistake
of fact, in light of the totality of the circumstances. The jury
concluded that it was not.

       Based on these facts, I cannot agree with the majority’s
conclusion that the jury returned a verdict for Klem. The exact
opposite is true. The jury answered Question 1 in favor of
Curley, which established a constitutional violation. Although
the jury answered Question 3 in favor of Klem, this question
should never have been posed, as it asked the ultimate question

                               40
of qualified immunity and encompassed purely legal issues
reserved exclusively for the court. The majority concedes that
such a question is outside the province of the jury, and our prior
precedents, including our prior decision in this case, have never
stated otherwise. Therefore, in order to justify its decision to
affirm, the majority takes a revisionist view of history and
refashions Question 3 into a factual, rather than legal, question.
The majority does so notwithstanding the fact that the language
and structure of the verdict sheet and the understanding of the
District Court and the parties clearly demonstrate that Question
3 was an improper legal question.

       For these reasons and those that follow, I respectfully
dissent. Question 3 should be stricken, the judgment for Klem
should be vacated, and this case should be remanded in order to
permit the District Court, rather than the jury, to resolve the
ultimate question of qualified immunity. If the District Court
were to conclude that immunity is not warranted under clearly
established law, judgment should be entered in favor of Curley
and the case should proceed to a damages determination.

I. BACKGROUND

       In Curley v. Klem, 298 F.3d 271 (3d Cir. 2002) (“Curley
I”), we reversed the summary judgment for Klem on Curley’s
excessive force claim because the District Court failed to
“recognize the existence of disputed historical facts that are
clearly material to the question of objective reasonableness.” Id.
at 281. Specifically, we identified a series of disputed facts
relating to “two key events – the inspection of the suspect’s
vehicle and the actual confrontation between Klem and Curley.”

                               41
Id. We discussed each event in detail, under separate topic
headings entitled “The Body in the Camry” and “The
Confrontation,” id. at 281-282, and noted their sequential
relationship to one another:

       When Klem arrived at the toll plaza, he was unaware that
       his suspect had just shot and killed himself while sitting
       inside the stolen Camry. But it is uncontroverted that
       Klem knew there was only one perpetrator. Thus, had
       Klem known of Bailey’s suicide, it would have been
       clearly unreasonable for him later to confuse Curley with
       the suspect. Assuming that a reasonable officer in
       Klem’s position would have looked inside the Camry
       upon arriving at the scene, a key issue becomes whether
       Klem did, in fact, look inside the Camry’s window.

Id. at 281 (emphasis added). We noted that, while qualified
immunity is supposed to act as immunity from suit, not just
liability, “the reality [is] that factual disputes often need to be
resolved before determining whether the defendant’s conduct
violated a clearly established constitutional right.” Id. at 278.
We noted that “[a] judge may use special jury interrogatories,
for instance, to permit the jury to resolve the disputed facts upon
which the court can then determine, as a matter of law, the
ultimate question of qualified immunity.” Id. at 279. Our
analysis was colored by the Supreme Court’s directive, in
Saucier v. Katz, 533 U.S. 194 (2001), that Fourth Amendment
qualified immunity analysis “must be undertaken in light of the
specific context of the case, not as a broad general proposition.”
Id. at 201 (emphasis added).



                                42
        In accordance with our directives in Curley I, the District
Court submitted a series of special interrogatories to the jury at
the conclusion of trial. These 10 interrogatories were derived
from the material fact disputes we had identified in our decision
in Curley I. Five interrogatories sought to resolve fact disputes
relating to the extent of Klem’s inspection of the Camry. All of
these interrogatories were answered in favor of Curley in that
they tended to demonstrate that Klem had acted unreasonably by
failing to look into the Camry, where he would have seen the
perpetrator’s dead body.21 The other five interrogatories
addressed Klem’s subsequent confrontation with Curley –

   21
      These interrogatories are as follows. Interrogatory 1
asked: “At the time Trooper Klem approached the Camry,
was the perpetrator’s body on the front seat of the car?” The
jury answered: “Yes.” Interrogatory 2 asked: “At the time
Trooper Klem approached the Camry, was the perpetrator’s
body on the passenger side floor of the car?” The jury
answered: “No.” Interrogatory 3 asked: “When Trooper Ron
Klem was within about an arm’s length from the passenger
side window of the Camry, did he look into the window of the
Camry to see if the perpetrator was in the car?” The jury
answered: “No.” Interrogatory 4 asked: “Regardless of
where the perpetrator’s body was located in the Camry,
should it have been visible to someone looking in the
passenger side window from where Trooper Klem was
positioned?” The jury answered: “Yes.” Interrogatory 5
asked: “Did Trooper Ron Klem make an objectively
reasonable effort to observe into the Camry to determine if the
perpetrator was inside the Camry?” The jury answered:
“No.”

                                43
which, by Klem’s own admission, never would have happened
had Klem acted reasonably by looking into the Camry. Two of
these interrogatories were answered in favor of Curley (in that
they tended to demonstrate that Klem confronted Curley in an
unreasonable manner),22 one interrogatory was answered in
favor of Klem (in that it tended to demonstrate that Klem had
acted reasonably),23 and two interrogatories were left
unanswered due to the jury’s failure to reach a unanimous
decision on them.24


   22
      These interrogatories are as follows. Interrogatory 7
asked: “Did Officer Curley raise his gun to point directly at
Trooper Ron Klem several times during “the confrontation?”
The jury answered: “No.” Interrogatory 8 asked: “At the
time Officer Curley was shot, was Officer Curley’s gun
coming up to aim at Trooper Ron Klem?” The jury answered:
“No.”
   23
       This interrogatory, Interrogatory 6, asked: “Was it
objectively reasonable for Trooper Ron Klem to believe that
toll collector Jenkins signaled to him with an arm motion
towards the east side center of the plaza?” The jury
answered: “Yes.”
   24
      These interrogatories are as follows. Interrogatory 9
asked: “Was Officer Curley’s uniform visible as a police
uniform from the position where Trooper Ron Klem was
standing?” Interrogatory 10 asked: “Was it objectively
reasonable for Trooper Ron Klem to believe that the
individual he observed holding a weapon was wearing civilian
clothing?”

                              44
        The District Court also submitted to the jury a separate
“Liability Verdict Sheet” premised on and guided by our
discussion in Curley I. Although the majority opinion
reproduces the four liability questions in full, the majority fails
to include the instructions that accompanied these questions.
Because these instructions are critical to understanding the
meaning of the questions themselves, I set forth the verdict sheet
in its entirety, as returned by the jury, below:

               LIABILITY VERDICT SHEET

       After you have finished answering the written
       interrogatories, please proceed to liability, and, if
       appropriate, damage questions.

       1.     Did Trooper Ron Klem’s failure to act in an
              objectively reasonable manner in observing the
              Camry prevent him from seeing the
              perpetrator’s body in the Camry?

                  X     Yes                  No

       2.     Did Trooper Ron Klem act in an objectively
              reasonable manner in shooting Officer Curley
              during the confrontation?

                  X     Yes                  No

              If you answered Yes to Question 1 and/or No to
              Question 2, proceed to Question 3.


                                45
     If you answered No to Question 1 and also Yes to
     Question 2, then go no further. Stop deliberating
     and inform the attendant that you have reached
     the verdict. If not, proceed to Question 3.

3.   Was Trooper Ron Klem’s mistake in firing his
     weapon objectively reasonable?

        X     Yes                No

     If you answered No to Question 3, then proceed
     to Question 4.

     If you answered Yes to Question 3 then proceed
     no further. Stop deliberating and inform the
     attendant that you have reached a verdict.

4.   Did the plaintiff suffer damages that were
     proximately caused by Trooper Ron Klem’s
     conduct?

            Yes                  No

     If you answered Yes to Question 4 you must
     proceed to the Damages Verdict Sheet.

     If you answered No to Question 4, proceed no
     further. Stop deliberating and inform the
     attendant that you have reached a verdict.




                     46
        There is certainly some ambiguity in the verdict sheet.
However, as I will discuss below, I believe it is clear that – in
light of the special interrogatories, the verdict sheet instructions,
and other record evidence – Questions 1 and 2 represented
alternate theories of liability, and Question 3 represented the
ultimate qualified immunity question. Although Questions 1
and 2 were more or less in accordance with our directives in
Curley I, Question 3 was not – and it never should have been
included on the verdict sheet.

       Upon receiving the jury’s answer to Question 3, the
District Court promptly entered judgment for Klem on that
basis, without any further analysis, in a two-page judgment
order. See 9/29/05 Order. In its post-trial opinion, the District
Court made clear that the issue of qualified immunity was out of
its hands and had been delegated to the jury in Question 3:
“Question 3 properly asks the jurors to make the finding that is
inherent in the remand, and in answering it as they did,
unanimously, this jury decided the issue of qualified immunity
in Trooper Klem’s favor.” Curley v. Klem, No. 98-5256, 2006
WL 414093, at *5 (D.N.J. Feb. 21, 2006) (emphasis added). By
entering judgment for Klem on the basis of Question 3, the
District Court disregarded the jury’s answers to the special
interrogatories, overrode the jury’s finding of liability in
Question 1, and improperly delegated the ultimate question of
qualified immunity to the jury.

II. DISCUSSION

       First, I will explain why Questions 1 and 2 were alternate
theories of liability. Second, I will explain why Question 3

                                 47
asked the ultimate question of qualified immunity, and thus
should be stricken. Third, I will explain how the District Court
should have handled the issue of qualified immunity.

       A. Questions 1 & 2

         It is self-evident that Klem shot the wrong man. That
mistake alone, however, does not establish a Fourth Amendment
violation for unreasonable seizure. Rather, what must be shown
is that the facts of the case rendered it objectively unreasonable
for Klem to mistake Curley for the fleeing perpetrator and then
use deadly force to seize him. As we noted in Curley I, there are
at least two ways in which the jury could have found the
mistaken identification and corresponding shooting to be
objectively unreasonable. First, the jury could have concluded
that Klem acted unreasonably by failing to check the Camry for
the perpetrator’s body, which directly led to the mistaken
identification and shooting. Indeed, we explicitly stated in
Curley I that, “had Klem known of Bailey’s suicide, it would
have been clearly unreasonable for him later to confuse Curley
with the suspect.” 298 F.3d at 281. Second, even if Klem had
acted reasonably in failing to check the Camry, the jury could
still find that Klem acted unreasonably in mistaking Curley for
the perpetrator during the subsequent confrontation depending
on the circumstances of that event. Id. at 282.

        Although these two theories were not the only potential
avenues for liability, they were the focus of our opinion in
Curley I and influenced the District Court’s decision to place
Questions 1 and 2 on the verdict sheet as alternative theories of
liability. The trial record reflects that the parties and the District

                                 48
Court understood and intended Questions 1 and 2 to be alternate
liability questions. This understanding was in line with the
verdict sheet instructions directing the jury to proceed to
Question 3 “[i]f you answered Yes to Question 1 and/or No to
Question 2” (emphasis added). The fact that an answer for
Curley on either Question 1 or 2 warranted consideration of
Question 3 suggests that Questions 1 and 2 were in fact alternate
and independent liability questions. They had to be, because an
answer for Curley on either question took the jury to the same
place. Questions 1 and 2 operated independently and a finding
for Curley on either one was sufficient to establish a
constitutional violation.

        Klem argues that Question 1 was actually a special
interrogatory, as opposed to an independent liability question.
This argument makes little sense in light of the fact that all other
special interrogatories were placed on a separate sheet entitled
“Special Interrogatories” and Question 1 appeared on the
“Liability Verdict Sheet.” Klem also argues that the District
Court would have included instructions to skip Question 2 upon
a finding in favor of Curley on Question 1 if those two questions
were actually alternate and independent theories of liability.
This argument seems plausible at first blush, but Curley rightly
points out that it was sensible for the District Court to instruct
the jury to answer both questions, despite being independent of
one another, in case this Court were to invalidate one of the two
theories of liability on appellate review – a reasonable concern
given the complexity and history of this case. Finally, Klem
argues that our comment in Curley I that “a key issue” – as
opposed to the key issue – was “whether Klem did, in fact, look
inside the Camry’s window,” id. at 281, shows that it is

                                49
impossible for Question 1 to be outcome-determinative. This
argument falls short because it fails to appreciate the fact that
identifying a proximate cause of an injury can be outcome-

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

       With regard to this last argument, the majority adopts a
somewhat similar view by arguing that one event – the
unreasonable failure to inspect the Camry – cannot alone
support liability because the totality of the circumstances must
be considered. I do not dispute that the totality of the
circumstances must be considered and I fully agree that “[a]ll of
the events leading up to the pursuit of the suspect are relevant.”
Carswell v. Borough of Homestead, 381 F.3d 235, 243 (3d Cir.
1999) (citing Abraham v. Raso, 183 F.3d 279, 292 (3d Cir.
1999)). Indeed, the jury was instructed to consider the totality
of the circumstances,25 and did so in answering Question 1.
Application of the totality of the circumstances standard,
however, does not make it impossible for one particular
circumstance to be outcome-determinative, as it was here,
because it is entirely possible that some circumstances are more
important that others. See Abraham, 183 F.3d at 292
(disagreeing with the proposition that “all preceding events are
equally important” in a similar Fourth Amendment case). We
highlighted this fact in Curley I when we explained that Klem’s

   25
       In its charge to the jury, the District Court stated that
“[a]ll of the events leading up to the pursuit of the suspect are
relevant,” apparently quoting Carswell verbatim. App. at
T1166.

                               50
unreasonable failure to look into the Camry would be important
enough to render his misidentification and shooting of Curley
immediately thereafter unreasonable; in other words, the first
unreasonable act would necessarily carryover and render the
second act unreasonable as well. See Curley I, 298 F.3d at 281.

         This is so because the high-speed chase was composed of
a sequence of events forming a chain reaction, like a row of
falling dominoes. One event caused the next event which
caused the next. Had Klem looked into the Camry for the sole
perpetrator – which is what the jury concluded an objectively
reasonable police officer would have done in light of the
circumstances26 – a key domino would have been removed and
the chase would have come to an end. Indeed, Klem admitted
at trial that, had he seen the perpetrator in the Camry, he never
would have shot Curley. App. at T1016. Klem’s admission
negates any suggestion that, even if he knew of the perpetrator’s
death, Curley’s subsequent approach with a gun might have

   26
      In Curley I, we “[a]ssum[ed] that a reasonable officer in
Klem’s position would have looked inside the Camry upon
arriving at the scene.” 298 F.3d at 281. Our assumption was
borne out by the jury’s findings in Interrogatory 5 and
Question 1. In Interrogatory 5, the jury was asked, “Did
Trooper Ron Klem make an objectively reasonable effort to
observe into the Camry to determine if the perpetrator was
inside the Camry?,” and answered, “No.” In Question 1, the
jury was asked, “Did Trooper Ron Klem’s failure to act in an
objectively reasonable manner in observing the Camry
prevent him from seeing the perpetrator’s body in the
Camry?,” and answered, “Yes.”

                               51
nevertheless presented a new danger that would have warranted
the use of deadly force.

       The District Court correctly instructed the jury: “The
question is whether, in the circumstances here, a reasonable
officer would not have made the mistake that Trooper Klem
made.” App. at T1166-67. By concluding, in Question 1, that
a reasonable officer would have looked in the Camry – where,
according to the jury’s findings in the special interrogatories,
Bailey was lying in plain view – the jury answered the
dispositive question of liability in favor of Curley. For Klem’s
shooting of Curley to have been reasonable, Klem’s
misidentification of Curley must have been reasonable as well.
The jury concluded that Klem’s misidentification was not
reasonable. Therefore, the shooting could not have been
reasonable.27 It is this simple syllogism, premised upon the law

   27
      This is so notwithstanding the jury’s answer to Question
2, which, as discussed above, was answered in case this Court
were to invalidate Question 1. The shooting during the
confrontation was unreasonable by necessity – due to the
sequential nature of the events – once the jury concluded that
it was unreasonable for Klem not to look into the car. The
unreasonableness of Klem’s failure to look into the Camry
carried over and rendered Klem’s misidentification during the
confrontation unreasonable as well. This “carry over” effect
can be understood with a hypothetical. If, during a high-
speed car chase, an officer unreasonably turned off his police
radio and therefore did not hear that the perpetrator being
pursued had been stopped, by necessity it would be
unreasonable if the officer then rammed an innocent driver,

                              52
of the case as set forth in Curley I, see In re City of Phila. Litig.,
158 F.3d 711, 722 (3d Cir. 1998) (applying law of the case
doctrine in a similar Fourth Amendment case), that the majority
fails to appreciate.

      For these reasons, I would conclude that, by answering
Question 1 in favor of Curley, the jury found that Klem had
committed a constitutional violation. In this case, proof of an
unreasonable action that directly causes a later action that might
otherwise be reasonable but nevertheless should not have
occurred should be enough to prove a violation.28 Having
concluded that the jury found a constitutional violation, I



wrongly identified as the feeling perpetrator, after the
unreasonable action of turning off the radio – an unreasonable
action directly responsible for the misidentification and
ramming of the innocent driver. Similarly, Klem’s
misidentification of Curley is unreasonable due to the
unreasonable action that directly preceded it – the failure to
look into the Camry – which directly caused the
misidentification and shooting to occur.
   28
      This is not to say that in all circumstances one
unreasonable action that occurs within a series of reasonable
actions necessarily establishes a violation. For example, if the
hypothetical officer discussed above, supra note 7, turned his
radio back on before any relevant information was
transmitted, the officer’s misidentification later would not
necessarily constitute a violation simply because of the
officer’s earlier unreasonable action of turning off his radio.

                                 53
consider whether we should permit that finding to be negated by
Question 3.

       B. Question 3

       As I noted above, there is no dispute that Klem shot the
wrong man. Therefore, Questions 1 and 2 did not ask whether
Klem had made a mistake, since that was conceded; rather, they
asked whether Klem’s mistake was an objectively reasonable
one, for Fourth Amendment purposes, in light of the factual
circumstances at hand. That is, Questions 1 and 2 resolved step
one of the Saucier test concerning whether a constitutional
violation had occurred.

       Since the jurors found a constitutional violation by
answering “Yes” to Question 1, they next considered Question
3, which asked, “Was Trooper Ron Klem’s mistake in firing his
weapon objectively reasonable?” The majority acknowledges
that “Question Three on the liability verdict sheet was evidently
intended to reach the question of qualified immunity,” i.e.,
Saucier step two, but nevertheless concludes that Question 3
“actually pertains to whether there was any constitutional
violation at all.” Maj. Slip Op. at 27. The majority’s conclusion
is unfounded because, as discussed above, the language and the
structure of the verdict sheet make clear that Questions 1 and 2
already asked whether a constitutional violation had occurred.
Under the majority’s reading, Question 3 is essentially
redundant. I believe the more logical reading is that Question 3
sought to resolve Saucier step two, i.e., the objective
reasonableness of a mistake of law, whereas Questions 1 and 2



                               54
resolved Saucier step one, i.e., the objective reasonableness of
a mistake of fact.29

        As alluded to by the majority, my conclusion is in line
with the understanding of the parties and the District Court. In
its post-trial opinion, the District Court made clear that Question
3 asked the ultimate question of qualified immunity. The
District Court stated that “the litigants agreed to submit the
ultimate question of qualified immunity to the jury,”30 despite


   29
       That said, there is certainly some ambiguity in the
verdict sheet, in large part because “objective reasonableness”
is the standard by which a mistake of fact (or any decision
based on real or perceived facts) and a mistake of law (or any
decision based on a correct or incorrect understanding of the
law) must be judged in the context of a Fourth Amendment
case such as this one. See Maj. Slip Op. at 17-18 (noting that,
in a Fourth Amendment case, Saucier steps one and two
require an objective analysis of what is reasonable under the
facts and the law, respectively). Courts create confusion by
talking about “objective reasonableness” in the Fourth
Amendment context without specific reference to either
Saucier step one or two.
   30
      It should be noted, however, that Curley never agreed to
submit the qualified immunity question to the jury. The
record clearly reflects that Curley objected to the inclusion of
Question 3 on the verdict sheet prior to its submission to the
jury. Curley correctly noted that Question 3 asked about a
purely “legal matter” that “should not be a jury question.”
App. at T1062.

                                55
the fact that “there is Third Circuit law on the books that
indicates the trial judge, and not the jury, decides qualified
immunity.” Curley, 2006 WL 414093, at *1. Therefore, “the
jury would decide the issue of qualified immunity,” id. at *4,
“and in answering [Question 3] as they did, unanimously, this
jury decided the issue of qualified immunity in Trooper Klem’s
favor,” id. at *5. By interpreting Question 3 to apply to Saucier
step one, rather than step two, the majority is rewriting history.

        Having concluded that Question 3 did, in fact, ask the
ultimate question of qualified immunity, I consider whether it
was permissible for the District Court to submit that question to
the jury. I have no trouble concluding that it was not. Although
the objective reasonableness of a mistake of fact is a question
that the jury may answer, the jury may never consider the
objective reasonableness of a mistake of law.31 See Carswell,
381 F.3d at 242 (“The court must make the ultimate
determination on the availability of qualified immunity as a
matter of law.”) (citing Curley I, 298 F.3d at 279 and Sharrar v.
Felsing, 128 F.3d 810, 828 (3d Cir. 1997)). The majority
agrees: “whether an officer made a reasonable mistake of law
and is thus entitled to qualified immunity is a question of law
that is properly answered by the court, not a jury.” Maj. Slip
Op. at 25. This was the law at the time of trial, and this is the

   31
      In this case, the mistake of fact was for Klem to think
that Curley was the fleeing perpetrator. The mistake of law, if
there was one, would have been for Klem to think that the
Fourth Amendment jurisprudence of the Supreme Court and
this Court permitted the use of deadly force in this situation,
when it did not.

                               56
law today. Although the jury may “determine[] disputed
historical facts material to the qualified immunity question,”
Carswell, 381 F.3d at 242, under no circumstances may the
court delegate the ultimate question of qualified immunity to the
jury, id., as was done in this case. Rather, the court should have
decided – based on the facts of the case, as clarified by the
special interrogatories – whether immunity was warranted under
the Fourth Amendment jurisprudence of the Supreme Court and
this Court.

        The majority suggests that our decision in Curley I left
open the possibility of giving the ultimate question of qualified
immunity to the jury. The majority points out that we stated in
that case “that a jury can evaluate objective reasonableness
when relevant factual issues are in dispute.” Maj. Slip Op. at 25
(quoting Curley I, 298 F.3d at 279). I disagree with the
majority’s interpretation of Curley I. To the extent we were
permitting juries to consider the question of “objective
reasonableness,” we were referring to the objective
reasonableness of one’s view of the facts (i.e., Saucier step one,
which asks whether a violation occurred), as opposed to the
objective reasonableness of one’s view of the law (i.e., Saucier
step two, which asks whether a right was clearly established
under the case law). See supra note 9. Indeed, we made clear
the respective roles of the judge and jury in cases such as this
one: “A jury must resolve these [fact] issues before a court can
determine whether it would have been clear to a reasonable
officer that Klem’s conduct was unlawful.” Curley I, 298 F.3d
at 283.




                               57
        The majority also suggests that our decisions in Sharrar
and Karnes v. Skrutski, 62 F.3d 485 (3d Cir. 1995), both Fourth
Amendment cases, demonstrate that “[w]e had previously
permitted the jury to answer the key immunity question of
whether the challenged behavior of a government official was
objectively reasonable.” Maj. Slip Op. at 22. Although Sharrar
and Karnes are not controlling in light of our subsequent cases,
such as Carswell and Curley I, it is important to note that the
majority’s suggestion concerning our supposedly “evolv[ing]”
precedents, Maj. Slip Op. at 22, is not accurate and is the result
of a misreading of Sharrar and Karnes that resembles the
majority’s misreading of Curley I. In each instance, the majority
improperly assumes that a jury empowered to address the
objective reasonableness of one’s view of the facts may also
address the objective reasonableness of one’s view of the law.
That is not the case and never has been. We have never said that
the qualified immunity question concerning the objective
reasonableness of an officer’s view of the law may be submitted
to the jury. “Objective reasonableness” can be a jury issue to
the extent it applies to the question of whether, as a factual
matter, a violation was committed. However, “objective
reasonableness” is most definitely not a jury issue to the extent
it applies to the question of whether, as a legal matter, a right
was clearly established. Whether a right was clearly established
is the “key immunity question”; we have never permitted a jury
to answer that question. Indeed, we never would have said so
because determining whether a right is clearly established –
which requires a review of the applicable case law – is clearly
outside the expertise of the jury. There is simply nothing in
Sharrar or Karnes that permits submission of the ultimate



                               58
question of qualified immunity, i.e., Saucier step two, to the
jury.32

   32
       For example, in Sharrar, we held “that in deciding
whether defendant officers are entitled to qualified immunity
it is not only the evidence of ‘clearly established law’ that is
for the court but also whether the actions of the officers were
objectively reasonable. Only if the historical facts material to
the latter issue are in dispute . . . will there be an issue for the
jury.” 128 F.3d at 828 (emphasis added). Therefore, we
made clear that consideration of Saucier step two is
exclusively reserved for the court. (Consequently, I believe
the majority misstates the law by saying that, “in a line of
cases beginning with Doe v. Groody, we began highlighting
that ‘qualified immunity is an objective question to be
decided by the court as a matter of law.’” Maj. Slip Op. at 23
(citation omitted). This basic proposition cited by the
majority was well-established before Doe; it was previously
set forth in Bartholomew v. Pennsylvania, 221 F.3d 425, 428
(3d Cir. 2000), where we actually cited Sharrar, 128 F.3d at
828 for support.) We went on to find no reversible error
where the jury decided the objective reasonableness of what
was essentially a mistake of fact, i.e., one officer’s mistaken
belief that an accompanying officer had obtained a warrant.
Id. at 830-31. In Karnes, we made the unremarkable
statement that, “[w]hile the qualified immunity defense is
frequently determined by courts as a matter of law, a jury
should decide disputed factual issues relevant to that
determination.” 62 F.3d at 491. We stopped short of saying
that a jury may answer the ultimate question of qualified
immunity, and we remanded for jury resolution of disputed

                                 59
       As previously noted, supra note 9, any ambiguity in our
precedents exists because “objective reasonableness” is the
standard by which mistake of facts and mistakes of law are to be
judged in the context of the Fourth Amendment’s prohibition of
unreasonable searches and seizures. Courts, including this one,
create confusion by talking about “objective reasonableness” in
the Fourth Amendment context without specific reference to
either Saucier step one or two. The use of the term “objective
reasonableness” without reference to factual or legal
reasonableness is what has made this area of the law so
confusing and it is why our precedents appear at times to say
contradictory things with regard to the respective roles of judge
and jury in determining objective reasonableness.

        I will try to clarify matters. If there are no disputed
material facts, the court must determine the objective
reasonableness of a mistake of fact (here, whether it was
objectively reasonable for Klem to mistake Curley for the
perpetrator). However, if there are triable issues of material
fact, the jury must determine the objective reasonableness of
that mistake of fact. With regard to the objective reasonableness
of a mistake of law (here, whether it was objectively reasonable
for Klem to believe that the law permitted him to use of deadly
force against Curley in the situation at hand), the court should
always determine this issue, because doing so requires a review
of case law, which is not a task appropriate for the jury. (Of
course, this second Saucier step need not be reached if it is
established that no constitutional violation occurred. At that


issues of credibility related to qualified immunity, but not
qualified immunity itself. Id. at 499.

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point, there is no violation, so there is no need for immunity
analysis.) If there are no disputed material facts, the court
should make this determination as soon as possible. However,
if factual disputes relevant to this legal analysis do exist, the
court will have to postpone making this determination until the
jury resolves all the relevant factual disputes, because
determining what actually happened is a prerequisite to
determining whether the law clearly established that a particular
action was permitted or prohibited by the Fourth Amendment
under those circumstances. See Saucier, 533 U.S. at 202 (noting
that step two asks “whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted”) (emphasis added). After the jury resolves these
relevant fact disputes, presumably through the use of special
interrogatories, see Curley I, 298 F.3d at 279 (suggesting this
method), the court is then capable of deciding whether or not the
law clearly permitted or prohibited the conduct constituting the
constitutional violation.

       The District Court committed reversible error by
submitting the ultimate question of qualified immunity to the
jury by way of Question 3. Having so concluded, I next address
what the District Court should have done instead. In doing so,
I address what I believe to be the proper methods for handling
qualified immunity where material fact disputes preclude
resolution of that issue prior to trial.



       C. Proper Methods



                               61
        After answering one of the two alternate liability
questions in favor of Curley, the jury should have been
instructed to proceed to Question 4, concerning proximate
causation. The jury would have had to find that Klem’s
shooting of Curley caused Curley’s injuries, since the evidence
overwhelmingly reflected that fact and the issue was essentially
uncontested. Indeed, at the charging conference, counsel for
Klem agreed to place the proximate causation question
separately at the bottom of the verdict sheet, rather than
alongside each liability question, because causation was “not
really a contested issue in this case.” App. at T1061-62. Next,
the jurors should have been instructed to proceed to the separate
damages verdict sheet, where they would have had to decide on
dollar amounts that accurately reflected the economic and non-
economic losses suffered by Curley as a result of Klem’s
violation.

       After receiving the jury’s verdict for Curley, the District
Court should have considered whether qualified immunity,
Saucier step two, nevertheless prevented judgment from being
entered against Klem. That would have been appropriate if the
Fourth Amendment jurisprudence of the Supreme Court and this
Court did not clearly establish that Klem’s conduct, in the
circumstances at hand, was unlawful. In other words, if Klem’s
conduct could have been the result of an objectively reasonable
but mistaken view of law, he should have been entitled to
qualified immunity.

       In making the ultimate qualified immunity determination
for a Fourth Amendment case such as this one, the District
Court should have reviewed the answers to the special

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interrogatories in order to determine what actually happened.
Then the District Court should have applied these findings to its
survey of the relevant case law in order to determine if it was
clearly established that a police officer was permitted to use
deadly force in circumstances similar to the instant case. Post-
trial briefing likely would have been helpful to the District Court
in this regard. If the District Court had concluded that Klem
was entitled to qualified immunity, judgment should have been
entered for Klem, notwithstanding the jury’s verdict. If the
District Court had made the opposite conclusion, judgment
should have been entered for Curley. Either way, the District
Court should have issued a written opinion explaining its
reasoning with regard to qualified immunity.

III. CONCLUSION

        In my view, the District Court improperly delegated the
ultimate question of qualified immunity to the jury. I would
vacate the judgment for Klem and remand the case so that the
District Court can decide the question of qualified immunity in
the first place.33

   33
      However, I would not remand to a different judge, as
Curley requests, because there is little evidence, if any, of
judicial bias. Curley attempts to show bias by pointing to
several unremarkable rulings and remarks made by Judge
Hayden during the official proceedings of this case. This
Court has said, however, that such official judicial activity is
almost never sufficient to warrant recusal under 28 U.S.C. §
455. See United States v. Bertoli, 40 F.3d 1384, 1412 (3d Cir.
1994) (citing Liteky v. United States, 510 U.S. 540, 554

                                63
        The District Court considered post-trial motions
regarding various issues, including potential inconsistencies in
the verdict, and in doing so conducted some analysis of the
special interrogatory answers. However, the District Court has
not considered qualified immunity anew based on the jury’s
answers to the special interrogatories and the relevant case law,
which is what I believe the law in the Circuit requires. If the
District Court were to conclude that Klem was not entitled to
qualified immunity, a trial would have to be held on the
damages issue, which never reached the jury. If, on the other
hand, the court were to conclude that Klem was entitled to
qualified immunity, then the court would have to set aside the
liability verdict as it had before.34


(1994)). In addition, a new trial in not required, as Curley
requests, for purported racial discrimination during juror
selection. The District Court correctly concluded that Curley
failed to make out a prima facie showing of racial
discrimination during voir dire under Batson v. Kentucky, 476
U.S. 79, 96 (1986) and United States v. Milan, 304 F.3d 273,
281 (3d Cir. 2002). In any case, Klem’s race-neutral
explanation for striking the juror at issue was adequate.
   34
      Although this Court might be able to conduct the
immunity analysis for the first time on appeal based on a
review of the law in light of the jury’s special interrogatory
answers, the District Court is in a better position to do so. For
example, the District Court, having sat through the trial and
being very familiar with the facts, is in a better position to
determine the meaning of answers to some of the more
ambiguous special interrogatory questions (such as

                               64
       Although the outcome reached by the majority brings
closure to nine years of litigation in this difficult case, I do not
believe that this outcome is the correct one. In my view, the
majority’s decision is not faithful to its own opinion, Curley I,
or our other precedents, and thus should be modified as I have
proposed.




Interrogatory 7, see supra note 2), and to consider how they
apply to the Saucier step two analysis. That said, it would be
surprising if the District Court were to grant qualified
immunity in this situation given Klem’s admission in his
appellate brief that the issue in this case “is not whether there
was a misunderstanding of the law.” Klem Br. at 25; see also
Klem Br. at 2 (“This case, involving a ‘friendly fire’ shooting
as a result of mistaken identity, is one of the class of Fourth
Amendment and qualified immunity cases where the decisive
issue is whether a police officer has made a reasonable
mistake of fact in carrying out his duties.”) (emphasis added).

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