                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-24-1997

Sharrar v. Felsing
Precedential or Non-Precedential:

Docket
96-5375




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Recommended Citation
"Sharrar v. Felsing" (1997). 1997 Decisions. Paper 252.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/252


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Filed October 24, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-5375

RONALD E. SHARRAR; GERARD A. SWEENEY;
DAVID L. BRIGDEN; KENNETH J. SHARRAR,

v.

DENNIS FELSING, SGT., Individually and as an officer of
the Sea Isle City Police Department; WILLIAM KENNEDY,
DETECTIVE SGT., Individually and as an officer of Sea
Isle City Police Department; ALBERT WILSON, LT.,
Individually and as an officer of the Sea Isle City Police
Department; MICHAEL LARKIN, SGT., Individually and
as an officer of the Sea Isle City Police Department;
CITY OF SEA ISLE

Ronald E. Sharrar, Gerard A. Sweeney,
David L. Brigden and Kenneth L. Sharrar,
       Appellants

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 94-cv-01878)

Argued May 23, 1997

Before: SLOVITER, Chief Judge, ROTH, Circuit Judge and
POLLAK,* District Judge

(Filed October 24, 1997)



_________________________________________________________________
* Hon. Louis H. Pollak, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.



       Jane M. Shields (Argued)
       Sherilyn M. Arnold
       Siana, Shields & Vaughan
       Exton, PA 19341

        Attorneys for Appellants

       Steve Drake (Argued)
       Savio, Reynolds & Drake
       Absecon, N.J. 08201
        Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Chief Judge.

Ronald Sharrar, Kenneth Sharrar, David Brigden and
Gerard Sweeney brought this civil rights action pursuant to
42 U.S.C. S 1983 against police officers Lt. Albert Wilson,
Sgt. Michael Larkin, Sgt. William Kennedy, Sgt. Dennis
Felsing, and the City of Sea Isle, New Jersey, alleging
unlawful arrest, arrest with excessive force, and two illegal
searches. After the district court granted summary
judgment to the defendants on all claims except for the
second allegedly illegal search, a magistrate judge
conducted a jury trial on the remaining claim against Sgts.
Larkin and Kennedy. The jury found that the search was
conducted without a warrant but that Sgt. Kennedy had
not participated in the search and that Sgt. Larkin had a
reasonable belief that he had a warrant so was entitled to
qualified immunity.

The plaintiffs appeal the summary judgment order, the
denial of their Motion for Judgment as a Matter of Law, and
the submission of a special interrogatory to the jury with
respect to Sgt. Kennedy's role in the illegal search. Plaintiffs
do not appeal dismissal of their claims against the City.

On this appeal, we must consider plaintiffs' contentions
that the court erred in disposing of certain claims by
summary judgment and in its handling of the one claim

                                  2



that reached the jury. We must also reach the issue of
qualified immunity, which had been sought by the
defendants although not fully addressed by the district
court.

I.

BACKGROUND

A.

Facts

As to those portions of this case that were decided by
summary judgment, we set forth the undisputed facts as
revealed by the record, which is comprised almost entirely
of deposition testimony, and the plaintiffs' version of the
facts when there are disparities. See In re City of
Philadelphia Litigation, 49 F.3d 945, 949 (3d Cir.), cert.
denied, 116 S. Ct. 176 (1995). We also refer to additional
facts adduced at the trial which was held on the claim
based on the second search.

On October 1, 1992 at approximately 12:10 p.m. Patricia
Gannon-Brigden (referred to here as Patricia Gannon)
called 911 and said "I had somebody come into my
apartment and beat me up. I'm bleeding pretty bad." App.
at 152. When the dispatcher asked who beat her up she
replied "Robert Carroll." The dispatcher asked for
clarification and Gannon repeated two more times that it
was Robert Carroll who beat her up. Id. The dispatcher
asked if he was still there and Gannon replied "No, he left.
And three other people were here with him. I'm bleeding. I
have blood all over me. There is blood everywhere." App. at
152-53. The dispatcher then told Sgt. Felsing, who was in
the room with the dispatcher, that "There is a woman beat
up by Robert Carroll." App. at 153. Sgt. Felsing's response
was inaudible and in deposition he testified that he never
heard the dispatcher mention the name Robert Carroll.

When Sgt. Felsing arrived at Gannon's apartment she
told him that she had been hit, and he saw a two-inch

                                3



laceration on her scalp, a pool of blood on the kitchen floor,
blood on a pillow in the bedroom and blood in her hair.
There were no signs of a forced entry or any broken objects
in the apartment. She told Sgt. Felsing "that her [estranged]
husband, David Brigden, and three others had come into
the house, that they held her while David pulled a gun and
hit her on the side of the head." App. at 250. She said that
Brigden was being investigated by the FBI for bringing
drugs into town, and that he told her that he was afraid
that she had gone to the FBI, and that "she wouldn't be the
first body he's thrown in the river and they haven't found.
He hit her and that's the last she remembered." App. at
255. Gannon did not identify or describe the other three
men to Sgt. Felsing.

An ambulance arrived soon after, as did Sgt. Larkin and
Capt. Kevin McClory. Sgt. Larkin stated that "Officer
Felsing indicated to me that [Gannon's] ex-husband entered
the condominium while two of her [sic] friends held her
down, he struck her with a handgun, and there was
another person involved, that he was standing by the door,
and he indicated that [Gannon] said that after they left,
they jumped into the brown van and they went back to
49th Street." App. at 297. Neither Sgt. Larkin or Capt.
McClory spoke with Gannon.

Gannon was taken to the hospital and was admitted at
approximately 1:09 p.m. About the same time, Sgt. Larkin
dispatched Sgt. Felsing to Brigden's home on 49th Street to
see whether the van was there. Sgt. Felsing radioed Sgt.
Larkin to tell him that the van was in front of Brigden's
residence and then parked his car on another street and
walked to the northwest corner of 49th Street and waited.
Sometime thereafter, while Sgt. Felsing was at the property,
Kim Candle, a resident of one of the units in the building,
came out and Sgt. Felsing asked her if Brigden was in the
house. She responded that she had heard noise downstairs
"so she knew they were there." App. at 263.

Sgt. Larkin also proceeded to Brigden's residence and
radioed the license number of the van to the dispatcher,
who confirmed that it was Brigden's van. At approximately
1:30 p.m. Capt. McClory arrived and Sgt. Larkin suggested
that they seek reinforcements. Capt. McClory agreed and

                                4



Sgt. Larkin called the dispatcher and told him to call Lt.
Wilson, "who was in charge of the tactical unit," and off-
duty officers. App. at 298. It took approximately a half hour
to forty-five minutes for all the reinforcement officers to
arrive.

A "temporary command post" was set up at the 49th
Street corner where the officers assembled in a variety of
police vehicles. App. at 345. City of Sea Isle Mayor Michael
McHale arrived, as did Police Commissioner Libro. FBI
agent Jack Reemer was called to the scene as a trained
hostage negotiator. Two officers from the Sheriff 's
Department arrived. Additional officers from the Avalon and
Ocean City Police Departments arrived, as did several
officers with drug/explosives sniffing dogs. Lt. Wilson, the
officer in charge of the SWAT team, arrived with the entire
eight member SWAT team, who were dressed in black
fatigue uniforms and armed with shotguns, rifles and
submachine guns. App. at 405-06.

The police created an inner and outer perimeter around
Brigden's residence. Capt. McClory ordered the evacuation
of all residents in the inner perimeter. He dispatched
someone to contact the schools in the area to divert their
normal bus routes and keep at school all children who lived
in the immediate vicinity of Brigden's residence. App. at
310. The fire station was ordered to accept evacuees, app.
at 145; fire trucks and ambulances were told to come to the
scene without lights and sirens; the City marina was closed
so that no boats could leave the harbor; and the bridge
which provided the sole vehicular access to the City was
blocked.

Once the inner perimeter was cleared, Lt. Wilson
assigned duties to members of the tactical team. Officer
Rock, who was "the department sniper," and another officer
were stationed at a nearby building. App. at 350. Sgt.
Larkin, Lt. Wilson and at least three other officers were
assigned to the rear of the residence. Sgt. Kennedy was
sent to the front of the residence in order to watch the front
door. Lt. Wilson then told Sgt. Felsing to go to a nearby
house and call Brigden. Sgt. Felsing was accompanied by
the FBI hostage negotiator.

                                5



Sometime between 2:30 and 3:20 in the afternoon,
Gerard Sweeney, who along with Ronald and Kenneth
Sharrar was staying with Brigden for a few days, looked out
a sliding glass door and saw an armed man in black
fatigues in the backyard. Frightened, he yelled "David, call
the police." App. at 121. Brigden stated that "I looked out
the back window and there was a fellow there kneeling,
dressed in black with a shotgun pointed at the house. And
I then went to the side window and looked out the side
window and saw a man there with a machine gun. . . ."
App. at 129.

When Brigden picked up the phone to call the police, Sgt.
Felsing was already on the line. Sgt. Felsing identified
himself, told Brigden that the house was surrounded by
police, that they had reason to believe he had committed an
assault, and wanted him to "send his people out" one by
one backwards out the back door and then for him to come
out. App. at 262. Brigden stated that while he was on the
phone he could hear men screaming for them to come out
backward with their hands on their heads.

The four men complied and walked out backwards one at
a time into the backyard and were ordered to lie face down
in the dirt. They allege that the police yelled and
"threatened to blow our brains out if we made one wrong
move." App. at 114. Sweeney stated that the police yelled:
"You move, I will blow your . . . fucking heads off." App. at
122. Kenneth Sharrar stated that once on the ground the
police "came up and were yelling, where's the fucking gun.
Stuck a gun in the back of my head, put their knee in my
back." App. at 115. Ronald Sharrar claimed the police
yelled at him to "[k]eep your fucking head down or I'll blow
it the fuck off," and repeated that threat three to five times.
App. at 105.
By 3:20 p.m. the four men were handcuffed, frisked, and
taken to the police station. According to Lt. Wilson, once
the four were taken into custody "[t]he tactical unit
immediately entered the building and cleared it to make
sure there were no other suspects still hiding inside." App.
at 429.

Brigden's residence consisted of a three story single-
family house that had been converted into four separate

                                6



locked and numbered apartment units. The first floor
contained two apartments, one of which was occupied by
Brigden. There were separate apartments on the second
and third floors. The officers admitted that they knew that
the other units were rented to other people.

Lt. Wilson testified that he and the SWAT team cleared
the building by entering each room in the entire building to
make sure there were no other suspects. The Mayor of the
City of Sea Isle also entered the building during this sweep.
Lt. Wilson then secured the residence so that no one would
enter the premises again until a search warrant was
procured. This sweep took somewhere between five and
twenty minutes.

The precise sequence thereafter is unclear. At Sgt.
Kennedy's deposition he stated that he and Sgt. Felsing
then went to obtain a search warrant from Municipal Court
Judge Kenneth Calloway, that he met with Judge Calloway
and, before he had anything in writing, told him what had
occurred and asked for a "no knock search warrant" for the
premises and all vehicles on the premises. App. at 361-63.
Sgt. Kennedy then claimed that Judge Calloway gave him
oral permission to search the premises and told him to
supply the necessary paperwork later. App. at 364. Sgt.
Kennedy informed Lt. Wilson that Judge Calloway had
authorized the search warrant and that the premises could
be searched. Sgt. Kennedy went back to Brigden's residence
and conducted a "walk-through of the scene" at the same
time that Sgt. Larkin, pursuant to Lt. Wilson's direction,
conducted the search. He was accompanied by several
other police officers, county sheriffs, and dogs. Sgt.
Kennedy then returned to the police station where he
formally transcribed the information he previously had
given to Judge Calloway and placed it in a search warrant
application. Judge Calloway signed the search warrant at
approximately 7:30 p.m., after both the sweep and the
entire search had been completed. At Judge Calloway's
deposition, taken shortly after Sgt. Kennedy's deposition,
Judge Calloway testified that he did not remember"ever
giving a verbal search warrant or authorization to do
anything." App. at 530.

                                7



At the trial, Sgt. Kennedy acknowledged that he had
testified at his deposition that he had received an oral
warrant from Judge Calloway, and transmitted that
information to the officers at the residence. However, he
stated that his recollection had been refreshed by review of
the telephonic transmission. App. at 844-45. He testified, or
at least suggested, that the search was instituted following
a telephone call during which Lt. Wilson, who was at the
scene, was advised by Capt. Devlin that he had received a
telephonic or oral warrant from Judge Calloway. App. at
832-34, 836, 839-41.

The next day the four plaintiffs were arraigned before
Judge Calloway and were charged with burglary, assault,
making terroristic threats and conspiracy. All of the
charges were eventually dismissed.

B.

Procedural History

In their S 1983 complaint, the four plaintiffs sued Sgt.
Felsing, Sgt. Kennedy, Sgt. Larkin and Lt. Wilson for
violation of the Fourth and Fourteenth Amendments for
arresting them without probable cause, unreasonable
search and seizure, and use of excessive force. They also
brought a S 1983 claim against the City of Sea Isle for
fostering a policy which resulted in the constitutional
violations by the police force.

After discovery, the plaintiffs filed a motion for summary
judgment. The defendant officers and the City then filed
their own motion for summary judgment. On March 7,
1996, the district court entered an order, accompanied by
an opinion, denying the plaintiffs' motion and granting the
defendants' motion in part.

The district court held that the police had probable cause
to arrest, that the arrest occurred in a public place so no
warrant was required, that the excessive force claim only
involved an alleged injury to Ronald Sharrar's shoulder
which could not be attributed to any of the defendants, and
that the police's initial warrantless search of Bridgen's

                                8
residence was an acceptable protective sweep. As for the
second more extensive search, the court referred to it as a
warrantless search, and did not find any exceptional
circumstances present to justify conducting a warrantless
search. Dist. Ct. Op. of March 7, 1996 at 14. It held,
however, that the only named defendants who were
implicated in this search were Sgts. Larkin and Kennedy
and declined to grant summary judgment for plaintiffs as to
these defendants because there was a genuine issue of
material fact as to whether they were entitled to qualified
immunity based on their belief that they had an oral search
warrant. Finally, the district court granted summary
judgment for the City, finding that the plaintiffs failed to
present any evidence of a custom or policy of violating
constitutional rights.

A magistrate judge presided over the jury trial which was
held against Sgts. Larkin and Kennedy on the claim
involving the second search. Following the presentation of
evidence, plaintiffs filed a Motion for Judgment as a Matter
of Law on the issue of qualified immunity, which the
magistrate judge denied. The magistrate judge then
submitted the illegal search claim to the jury along with
special interrogatories. The jury found that the search of
the premises was unlawful but returned a verdict in favor
of the defendants, finding that Sgt. Larkin had a good faith
belief that he was authorized to search the premises and
that Sgt. Kennedy was not liable because he did not enter
and search Brigden's residence.

II.

SUMMARY JUDGMENT

We exercise plenary review over a district court's order
granting summary judgment, applying the same test as the
district court should use in the first instance, to determine
if there are any issues of material fact which would allow
the issue to go to trial. See Fed. R. Civ. P. 56; Hamilton v.
Leavy, 117 F.3d 742, 746 (3d Cir. 1997). The plaintiffs, as
the non-moving parties, are entitled to every favorable
inference that can be drawn from the record. Id.

                                9



A.

The Arrests

1. Probable Cause
Plaintiffs first argue that there was no probable cause to
arrest them or at least that it should have been a question
for the jury. Probable cause is "defined in terms of facts
and circumstances `sufficient to warrant a prudent man in
believing that the [suspect] had committed or was
committing an offense.' " Gerstein v. Pugh, 420 U.S. 103,
111 (1975) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).
This standard is meant to " `safeguard citizens from rash
and unreasonable interferences with privacy' " and to
provide "leeway for enforcing the law in the community's
protection." Id. at 112 (quoting Brinegar v. United States,
338 U.S. 160, 176 (1949)).

We have stated that "[t]he determination that probable
cause exists for a warrantless arrest is fundamentally a
factual analysis that must be performed by the officers at
the scene. It is the function of the court to determine
whether the objective facts available to the officers at the
time of arrest were sufficient to justify a reasonable belief
that an offense [had been] committed." United States v.
Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984), cert. denied,
471 U.S. 1018 (1985). A court must look at the "totality of
the circumstances" and use a "common sense" approach to
the issue of probable cause. Id. at 1205 (citing Illinois v.
Gates, 462 U.S. 213 (1983)).

In a S 1983 action the issue of whether there was
probable cause to make an arrest is usually a question for
the jury, but "where no genuine issue as to any material
fact exists and where credibility conflicts are absent,
summary judgment may be appropriate." Deary v. Three
Un-Named Police Officers, 746 F.2d 185, 192 (3d Cir. 1984).
The question is for the jury only if there is sufficient
evidence whereby a jury could reasonably find that the
police officers did not have probable cause to arrest. Id. at
190.

Sgt. Felsing responded almost immediately to Gannon's
911 call and found her injured and bleeding. She identified

                                10



her husband David Brigden as her attacker, stated that he
was assisted by three other men, and also stated that they
all left in a brown van to return to Brigden's residence. Sgt.
Felsing then drove to Brigden's residence and saw a brown
van parked in the driveway that was positively identified by
the license tag as belonging to Brigden. Because of the
close proximity to the alleged attack, both in time and
distance, the police had probable cause to arrest Brigden,
whom the victim had identified, and the three men who
were still with Brigden on the reasonable inference that
they were the same three men who had participated in the
assault.

The plaintiffs argue that Gannon's initial identification of
"Robert Carroll" as her assailant was enough to undermine
her credibility in the eyes of the police and creates a
genuine issue whether the police had probable cause to
arrest based on her subsequent identification of Brigden.
They cite authority which they claim required the police to
assess her reliability.

The cases on which plaintiffs rely involve informers, not
victims. "[T]he skepticism and careful scrutiny usually
found in cases involving informants, sometimes
anonymous, from the criminal milieu, is appropriately
relaxed if the informant is an identified victim. . . ." Easton
v. City of Boulder, 776 F.2d 1441, 1449 (10th Cir. 1985),
cert. denied, 479 U.S. 816 (1986). The district court
explained, and we agree, that "[t]he cloistered nature of
domestic violence is such that the testimony of the battered
spouse and the injury itself may be the only evidence
available to establish probable cause." Dist. Ct. Op. at 8.

Furthermore, there is no evidence that Sgt. Felsing heard
Gannon's initial claim that Robert Carroll attacked her.
Even if he had heard, it was reasonable for Sgt. Felsing to
assess Gannon's demeanor, find her story credible, and rely
on her subsequent identification of her husband as the
attacker. When a police officer has received a reliable
identification by a victim of his or her attacker, the police
have probable cause to arrest. See Torchinsky v. Siwinski,
942 F.2d 257, 262 (4th Cir. 1991) ("It is surely reasonable
for a police officer to base his belief in probable cause on a
victim's reliable identification of his attacker."); Grimm v.

                                11



Churchill, 932 F.2d 674, 675 (7th Cir. 1991) ("When an
officer has received his information from some person--
normally the putative victim or an eye witness--who it
seems reasonable to believe is telling the truth, he has
probable cause." (internal quotations omitted)).

Ronald Sharrar, Kenneth Sharrar and Gerard Sweeney
argue that even if there was probable cause to arrest David
Brigden based on Gannon's identification, there was not
sufficient evidence to arrest them. They cite the Supreme
Court decision in Ybarra v. Illinois, 444 U.S. 85, 91 (1979),
for the proposition that "mere propinquity to others
independently suspected of criminal activity does not,
without more, give rise to probable cause. . . ." In Ybarra,
a search warrant was issued to search a bar on the
suspicion that a bartender was involved in drug sales. The
police arrived and frisked all patrons based solely on their
presence at the public tavern. Ybarra, a patron, sought to
exclude evidence which was recovered from his person
during this search. The Supreme Court held that the
search violated the Fourth Amendment because the police
had no facts which would support a suspicion that Ybarra
had violated the law or that he was armed and presently
dangerous. See id. at 91-93.

Ybarra is inapposite. This is not a case where Ronald
Sharrar, Kenneth Sharrar and Gerard Sweeney were
arrested based on their "mere propinquity" to Brigden.
Rather, they were arrested based upon an assault victim's
description of her attack, which included a clear
identification of her husband and the statement that he
was accompanied by three other men who all left in a
brown van to go to Brigden's house. In less than an hour
from the time of the 911 call, Sgt. Felsing observed that van
outside of Brigden's house and learned from another
resident of the building that Brigden may not be alone.
These facts support a finding of probable cause to arrest all
four plaintiffs.

2. Warrantless Arrest

Plaintiffs next contend that their arrests were illegal, even
if probable cause existed, because the arrests occurred
within their home unaccompanied by a warrant. Although

                                12



police may make a warrantless arrest in a public place if
they have probable cause to believe the suspect is a felon,
"the Fourth Amendment has drawn a firm line at the
entrance to the house. Absent exigent circumstances, that
threshold may not reasonably be crossed without a
warrant." Payton v. New York, 445 U.S. 573, 590 (1980).

The district court found that the arrests occurred in a
public place so no warrant was required: "[T]he police
telephoned the plaintiffs at home and asked them to come
out. They consented to do so and were arrested outside, in
a public place, at the moment the police took physical
custody of them." Dist. Ct. Op. at 9. Thus, notwithstanding
that the court recognized that "a substantial amount of
coercion motivated plaintiffs' consent," id., the court found
there to be no jury issue.

The point at which an arrest occurs has been the subject
of considerable judicial line-drawing. In Terry v. Ohio, 392
U.S. 1, 19 n.16 (1968), the Supreme Court defined a
seizure as "when the officer, by means of physical force or
show of authority, has in some way restrained the liberty of
a citizen. . . ." Later, in I.N.S. v. Delgado, 466 U.S. 210, 215
(1984), the Court explained that a person has been seized
within the meaning of the Fourth Amendment "if, in view of
all the circumstances surrounding the incident, a
reasonable person would have believed that he was not free
to leave." (internal quotations omitted). In the most recent
decision on the issue, the Supreme Court in California v.
Hodari D., 499 U.S. 621, 626 (1991) explained that "[a]n
arrest requires either physical force . . . or, where that is
absent, submission to the assertion of authority." (emphasis
in original).

Under any of these tests, when a SWAT team surrounds
a residence with machine guns pointed at the windows and
the persons inside are ordered to leave the house
backwards with their hands raised, an arrest has
undoubtably occurred. There was a clear show of physical
force and assertion of authority. No reasonable person
would have believed that he was free to remain in the
house. We hold that under these circumstances the arrests
occurred inside Brigden's home. See United States v. Al-
Azzawy, 784 F.2d 890, 893 (9th Cir. 1985) (arrest occurred

                                13



in the home when police surrounded the residence and
ordered the person out with a bullhorn), cert. denied, 476
U.S. 1144 (1986); United States v. Maez, 872 F.2d 1444,
1450 (10th Cir. 1989) (where SWAT team surrounded
trailer with rifles pointed and ordered suspect to exit, arrest
occurred in home despite lack of physical entry). Therefore,
the police were required to have secured an arrest warrant
unless there were exigent circumstances. See Payton, 445
U.S. at 590.

The district court held that even if the arrests occurred
indoors, exigent circumstances justified the warrantless
arrests. The government bears the burden of proving that
exigent circumstances existed: "Before agents of the
government may invade the sanctity of the home, the
burden is on the government to demonstrate exigent
circumstances that overcome the presumption of
unreasonableness that attaches to all warrantless home
entries." Welsh v. Wisconsin, 466 U.S. 740, 750 (1984).

In explicating further on the type of exigent
circumstances that would justify a warrantless entry into a
person's home, the Court quoted the Minnesota Supreme
Court with approval where it stated: "a warrantless
intrusion may be justified by hot pursuit of afleeing felon,
or imminent destruction of evidence, . . . or the need to
prevent a suspect's escape, or the risk of danger to the
police or to other persons inside or outside the dwelling."
Minnesota v. Olson, 495 U.S. 91, 100 (1990) (internal
quotations omitted); see United States v. Velasquez, 626
F.2d 314, 317 (3d Cir. 1980).

There is an insufficient basis on this record to hold, as
the district court did, that exigent circumstances existed as
a matter of law. There is nothing in the record to support
a theory of "hot pursuit," a fear that the suspects would
flee, or a fear that evidence would be destroyed. It appears
that, at most, the police believed that the suspects posed a
danger because Gannon said she had been hit with a gun.
The mere possession of a gun, which as far as the officers
knew had been used only once and then against Brigden's
wife, no matter how grievous a crime, does not necessarily
show exigent circumstances. The police have not
satisfactorily explained why, when the house was

                                14



completely surrounded by an armed SWAT team, they
could not secure the premises while they went to procure
an arrest warrant, especially in light of the fact that
Municipal Court Judge Calloway was sitting on the bench
at the police station during this entire episode.

The issue of exigent circumstances in these
circumstances would be one for the jury. See, e.g., Bodine
v. Warwick, 72 F.3d 393, 399 (3d Cir. 1995) (issue of
whether exigent circumstances existed should go to jury
when there are disputed factual issues). However, there is,
at most, evidence that only two of the defendants were
involved in the arrest. Sgt. Felsing may be viewed by a fact
finder as having effected the arrest by telephoning the order
to exit to the plaintiffs, and he apparently did so under the
direction of Lt. Wilson, the officer in charge of the
operation. Thus, in summary, we cannot affirm the district
court's disposition of the plaintiffs' claims based on that
court's view that the arrests raised no constitutional issue.

B.

Excessive Force

We turn next to plaintiffs' contention that the district
court erred in holding that there was insufficient evidence
to present a jury issue on their claim that excessive force
was used to arrest them. When an "excessive force claim
arises in the context of an arrest or investigatory stop of a
free citizen, it is most properly characterized as one
invoking the protections of the Fourth Amendment, which
guarantees citizens the right `to be secure in their persons
. . . against unreasonable . . . seizures' of the person."
Graham v. Connor, 490 U.S. 386, 394 (1989). The proper
test for evaluating an excessive force claim is therefore one
of objective reasonableness. See id. at 397.

This objective reasonableness test "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." Id. at 396. See also

                                15



Groman v. Township of Manalapan, 47 F.3d 628, 634 (3d
Cir. 1995). Significantly, the Supreme Court has cautioned
that in applying the objective reasonableness test, "[n]ot
every push or shove, even if it may later seem unnecessary
in the peace of a judge's chambers," is constitutionally
unreasonable. 490 U.S. at 396 (internal quotations
omitted). Rather, "[t]he calculus of reasonableness must
embody allowance for the fact that `police officers are often
forced to make split-second judgments--in circumstances
that are tense, uncertain, and rapidly evolving--about the
amount of force that is necessary in a particular
situation.' " Id. at 396-97.

In granting summary judgment, the district court held
that only Ronald Sharrar alleged any physical injury and
that that injury could not be attributed to any of the
defendant officers. On appeal the plaintiffs argue that Lt.
Wilson, as the on-scene commander and SWAT team
leader, may be held liable for acquiescing in the
unconstitutional conduct of his subordinate officers, even if
he was not directly responsible for Ronald Sharrar's
injuries. Plaintiffs also argue that their excessive force
claim involves not just Sharrar's physical injury, but the
entire level of force and verbal abuse used in the arresting
process: deploying the SWAT team, forcing plaintiffs to lie
face down in the dirt, and threatening that if they moved
the police would "blow [their] . . . fucking heads off." App.
at 122.

Ronald Sharrar, the only plaintiff who alleged any
physical injury, stated in deposition that the injury to his
shoulder occurred after he was placed in the police car: "My
handcuffs were grabbed from behind and my arms were
lifted up from behind. . . .My shoulder came partially out of
the socket." App. at 105-06. The claims of the other
plaintiffs are limited to "emotional distress, humiliation"
and "public scorn and derision." Complaint, App. at 30.

Ronald Sharrar, who could recognize all of the defendant
officers, was unable to identify which police officers were in
the police car with him at the time of the alleged abuse.
There was therefore no evidentiary basis on which to hold
these defendants liable. Plaintiffs argue that Lt. Wilson may
be liable under the cases holding that a police officer may

                                16



be liable for violating an arrestee's rights not only if he
personally participates in the violation, but also if he
directs others to so violate, or had knowledge of and
acquiesced in his subordinates' violations. See Baker v.
Monroe Township, 50 F.3d 1186, 1190-91 (3d Cir. 1995).
However, there is no evidence in the record to suggest that
Lt. Wilson, as the officer in charge, had any knowledge of
the alleged incident in the police car. Therefore, we will not
disturb the district court's determination that the conduct
leading to Ronald Sharrar's injury could not be attributed
to Wilson.

Turning next to the extent of force employed in effecting
the four arrests, it is incontestable that the display of force
used to apprehend the four men for an alleged domestic
assault, albeit with a gun, appears extreme. It entailed
calling over twenty officers to the scene, including a SWAT
team armed with machine guns and an FBI hostage
negotiator. It does not follow, however, that the extreme
methods used in effecting the arrests, such as requiring
plaintiffs to lie face down in the dirt, with guns to their
heads and vulgar threats, were constitutionally excessive,
even though they caused plaintiffs' discomfort and
humiliation. Although there are decisions of this court that
have found the use of force excessive, notwithstanding the
absence of extensive physical contact and permanent
physical injury, the circumstances here are distinguishable.

In Black v. Stephens, 662 F.2d 181 (3d Cir. 1981), cert.
denied, 455 U.S. 1008 (1982), we sustained a jury verdict
in a case where a plain-clothed police officer brandished
and pointed a revolver at plaintiff and his wife during what
was at that time only an investigatory stop. However, in
that case there had been no basis for plaintiff to know that
the gunman was a police officer or that an arrest would
eventually be effected. And in Baker v. Monroe, 50 F.3d at
1193, where police officers ordered those approaching a
house that was the subject of an incipient drug raid to "get
down," pushing them to the ground, while using handguns,
we reversed the district court's grant of summary judgment
and suggested that the officers' actions could constitute a
constitutional violation. See also McDonald v. Haskins, 966
F.2d 292, 294 (7th Cir. 1992) (finding a violation of the

                                17



Fourth Amendment when a police officer aimed a gun at a
passive nine-year-old boy and threatened to pull the
trigger).

The Supreme Court made clear in Graham that each case
alleging excessive force must be evaluated under the
totality of the circumstances. The district court here
focused only on the presence vel non of physical injury. We
do not agree that the absence of physical injury necessarily
signifies that the force has not been excessive, although the
fact that the physical force applied was of such an extent
as to lead to injury is indeed a relevant factor to be
considered as part of the totality. See Gumz v. Morrissette,
772 F.2d 1395, 1400-01 (7th Cir. 1985) (holding that,
under substantive due process standard, excessive force
claim must be "so egregious as to be constitutionally
excessive, and the presence of some physical injury is
certainly relevant to that determination"), cert. denied, 475
U.S. 1123 (1986), overruled, Lester v. City of Chicago, 830
F.2d 706, 712-14 (7th Cir. 1987). Other relevant factors
include the possibility that the persons subject to the police
action are themselves violent or dangerous, the duration of
the action, whether the action takes place in the context of
effecting an arrest, the possibility that the suspect may be
armed, and the number of persons with whom the police
officers must contend at one time.

In this case, the officers were arresting four men, they
had been advised that at least one of the men, with the
assistance of others, had used a gun in a violent episode
which was still unaccounted for, there had been some
suggestion that they may have been involved with drugs,
and there is no allegation that the requirement that the
suspects lie down extended beyond the time necessary to
handcuff them and secure them. While the language and
method used to effect the arrests appear to be more akin to
the Rambo-type behavior associated with police in
overdramatized B movies or TV shows than the police
conduct ordinarily expected in a quiet, family seaside town,
we are reluctant to establish a precedent that would subject
every police arrest of a group of possible violent offenders to
compliance with Marquis of Queensberry Rules of fair play.
Although these police officers came close to the line, these

                                18
circumstances, in totality, do not rise to a Fourth
Amendment violation. Therefore, we will not hold erroneous
the district court's grant of summary judgment to the police
officers on the plaintiffs' claim of excessive force.

C.

The Searches

1. The "Protective Sweep"

The plaintiffs also argue that the district court erred
when it held constitutionally permissible the "protective
sweep" of the premises conducted by the defendants after
plaintiffs were arrested but before defendants procured a
search warrant. The Supreme Court has defined a
protective sweep as "a quick and limited search of
premises, incident to an arrest and conducted to protect
the safety of police officers or others." Maryland v. Buie,
494 U.S. 325, 327 (1990). The sweep must be limited to a
search of "closets and other spaces immediately adjoining
the place of arrest from which an attack could be
immediately launched." Id. at 334. If the search goes
beyond the immediately adjoining areas, there must be
"articulable facts" which would warrant a reasonably
prudent officer to believe that there are individuals who
pose a danger in other areas of the house. See id. at 334.

In this case, the officers sought to justify their
warrantless entry into Brigden's unit immediately following
effecting the arrest by telephone on the ground that it was
a quick protective sweep incident to the arrest and needed
to protect the safety of the officers involved. The officers
contend they entered the residence seeking to determine
that there were no other accomplices hiding in the building
with access to the gun that remained unaccounted for.
Although they swept more broadly than Brigden's unit, we
need not decide whether the sweep of the remainder of the
four-unit building was justified because these plaintiffs,
who were overnight guests of Brigden, only had a privacy
interest in Brigden's unit and lack standing to challenge a
search of other persons' apartments. Olson, 495 U.S. at 95
(Fourth Amendment protects from unreasonable searches

                                19



only those places where persons have a legitimate
expectation of privacy).

We note as an initial matter that we are not dealing with
a criminal case where the admissibility of evidence found
during a protective sweep following an unconstitutional
arrest would lead to suppression of the evidence as fruits of
the unconstitutional arrests. Under the jurisprudence of
this court, the validity of the search for purposes of a
S 1983 suit must be examined independently of the
lawfulness of the arrests. See generally, Bodine, 72 F.3d at
400 (in a S 1983 case, questions of reasonableness and
constitutionality of officers' conduct once inside the home
were not dependent on whether officers' entry into the
home was lawful since officers are liable in tort only for
injury proximately caused by their unreasonable conduct).

In Maryland v. Buie, the Supreme Court's seminal
decision on this issue, the Court explained why a protective
sweep "incident to [an] arrest" was permissible under the
Fourth Amendment notwithstanding it was "without
probable cause or reasonable suspicion." 494 U.S. at 334.
The Court explained:

       In the instant case, there is an . . . interest of the
       officers in taking steps to assure themselves that the
       house in which the suspect is being, or has just been,
       arrested is not harboring other persons who are
       dangerous and who could unexpectedly launch an
       attack. The risk of danger in the context of an arrest in
       the home is as great as, if not greater than, it is in an
       on-the-street or roadside investigatory encounter. .. .
       A protective sweep . . . occurs as an adjunct to the
       serious step of taking a person into custody for the
       purpose of prosecuting him for a crime. Moreover,
       unlike an encounter on the street or along a highway,
       an in-home arrest puts the officer at the disadvantage of
       being on his adversary's "turf." An ambush in a
       confined setting of unknown configuration is more to be
       feared than it is in open, more familiar surrounding.

Id. at 333 (emphasis added). In addition, the Court noted
that

                                20



       the arrest warrant gave the police every right to enter
       the home to search for Buie. Once inside, the potential
       for danger justified a standard of less than probable
       cause for conducting a limited protective sweep.

Id. at 334 n.1 (emphasis added). Finally, the Court
cautioned that, unlike an evidentiary search, "a protective
sweep, aimed at protecting the arresting officers, if justified
by the circumstances, is nevertheless not a full search of
the premises, but may extend only to a cursory inspection
of those spaces where a person may be found." Id. at 335.

Although this court has never ruled on the circumstances
in which a protective sweep of a home, as defined in Buie,
would be permissible as incident to an arrest occurring just
outside the home, those circuits that have addressed the
issue have uniformly held that the reasoning of Buie is also
applicable and that under those circumstances, protective
sweeps of the home in such situations are not per se
unreasonable, see, e.g., United States v. Colbert, 76 F.3d
773, 776-77 (6th Cir. 1996); United States v. Henry, 48
F.3d 1282, 1284 (D.C. Cir. 1995); United States v.
Kimmons, 965 F.2d 1001, 1009-10 (11th Cir. 1992), cert.
denied, 506 U.S. 1086 (1993), cert. granted and judgment
vacated on other grounds, Small v. United States, 508 U.S.
902 (1993), judgment reinstated, United States v. Kimmons,
1 F.3d 1144 (11th Cir. 1993); United States v. Oguns, 921
F.2d 442, 446 (2d Cir. 1990); United States v. Tisdale, 921
F.2d 1095, 1097 (10th Cir. 1990), cert. denied, 502 U.S.
986 (1991). Those courts also agree that a sweep incident
to an arrest occurring just outside the home must be
analyzed under the second prong of the Buie analysis
requiring "articulable facts which, taken together with the
rational inferences from those facts, would warrant a
reasonably prudent officer in believing that the area to be
swept harbors an individual posing a danger to those on
the arrest scene." Buie, 494 U.S. at 334.

Like our sister circuits, we see no reason to impose a
bright line rule limiting protective sweeps to in-home
arrests, as we agree with the Colbert court that "in some
circumstances, an arrest taking place just outside a home
may pose an equally serious threat to the arresting
officers." 76 F.3d at 776. Certainly, it would be imprudent

                                21



to prohibit officers who are effecting an arrest or waiting
until a warrant may be obtained from ensuring their safety
and minimizing the risk of gunfire or other attack coming
from inside the home if they have reason to believe that
dangerous individuals are inside. Therefore, in order to
determine whether the protective sweep in question met the
standard enunciated by the Supreme Court in Buie, we
must consider whether there was an articulable basis for a
protective sweep, i.e., a warrantless search, under the
circumstances at that time.

Predictably, where the courts have differed in permitting
protective sweeps incident to arrests outside the home is on
the quantity and quality of the articulable facts necessary
to justify the sweep, rather than on the underlying
standard. In Oguns, 921 F.2d at 446-47, for example, the
Second Circuit upheld a protective sweep following an
arrest outside the home where "[e]ven though the agents
had been told that Oguns' brother was not in the
apartment, they still could have reasonably believed that
others were in the apartment." Similarly in Tisdale, 921
F.2d at 1097, the Tenth Circuit upheld a protective sweep
following an arrest made outside the home, reasoning that
"the fact that defendant fled [from the trailer before being
arrested], along with the sounds of gunshots, was ample
justification for a protective sweep." In Colbert, 76 F.3d at
777-78, however, the Sixth Circuit invalidated a protective
sweep following an arrest made outside the home and after
the arrestee's girlfriend frantically ran out of the house to
the arrest site because the officers had no information as to
whether anyone else was still in the house following the
arrest. In so holding, the court reasoned that " `[n]o
information' cannot be an articulable basis for a sweep that
requires information to justify it in the first place". Id. at
778.

Although the parties before us have not focused on Buie
and the standard enunciated there, the officers do contend
that the protective sweep was justified in light of the
"legitimate fear for their safety given the totality of the
circumstances they faced." Appellee's Brief at 24.
Admittedly, if the officers had an articulable basis to believe
that a confederate of those apprehended was still at large or

                                22



within the premises and that a weapon previously sighted
and not yet recovered might be available within the
premises, the protective sweep could have been justified,
see, e.g., Kimmons, 965 F.2d at 1009-10. The reasonable
possibility that an associate of the arrestees remains at
large to do mischief or cause danger to the officers is the
salient, although not necessarily only, concern for which a
warrantless protective sweep is justified. The evidence from
these defendants themselves, however, negates reliance on
these possibilities as the articulable basis for the protective
sweep.

The transcript of the events as they were unfolding
contains the following dialogue:

        MR. DEVLIN: Somebody from the Prosecutor's
       Office talked to the wife, there's only one gun involved,
       it's a pistol in the brown van in front of the house.

        MR. McCLORY: 10-4. Keep them coming out the
       back.
        MR. WILSON: Brigden is not out yet, he should be
       the fourth individual inside.

        MR. FELSING: Felsing to L-8.

        MR. McCLORY: If there's any movement to that
       brown van, let us know.

        MR. KENNEDY: I'm right on top of it, I am only 20
       feet away from it.

        Let's go back to the back, once they are out, we'll get
       the gun.

        MR. FELSING: Felsing to L-8.

        MR. WILSON: You got this fourth guy on the phone,
       Dennis?

        MR. FELSING: Got him on the phone.

        MR. WILSON: Send him out.

        MR. FELSING: 10-4.

        Okay he's coming out.

                                  23



        MR. McCLORY: C-2 to L-8, I think everybody is
       clear.

        MR. KENNEDY: The one in the front was covered.

        MR. WILSON: Tommy, you got the front door?

        MR. ROCK: Negative.

        MR. WILSON: Stand by.

        Dennis, is everybody out?

        MR. FELSING: Confirmed.

        MR. WILSON: We're ready for transport whenever
       you are ready.

App. at 1075-76 (emphasis added).

Thus, under the circumstances, the fact that the officers
believed that Brigden had brandished a pistol cannot, on its
own, constitute sufficient "articulable facts" as required
under Buie for two reasons. First, it implies nothing
regarding the possible presence of anyone being in
Brigden's home -- the touchstone of the protective sweep
analysis. See Colbert, 76 F.3d at 777 (arrestee's
dangerousness is irrelevant to the protective sweep analysis
once the arrestee is in custody); United States v. Ford, 56
F.3d 265, 269 (D.C. Cir. 1995) (fact that homicide suspect
was assumed to be armed and dangerous did not justify
protective sweep beyond the immediate area of the arrest).
Second and more importantly, at the time of the protective
sweep, the officers at the scene had been informed, and
believed, that the gun allegedly used in the assault was not
in Brigden's residence, but in his van. App. at 1075-79.

Similarly unavailing to the officers is the fact that they
had been told that Brigden was accompanied by three
accomplices. Once all four men were out of the house and
in custody, the arresting officers had no basis, let alone the
"articulable facts" required under Buie, to conclude that
others remained inside. Indeed, as the transcript reveals,
Sgt. Felsing informed Lt. Wilson that everyone was out of
the house before the sweep was initiated. App. at 1076.

Because we agree with the court in Colbert that " `[n]o
information' cannot be an articulable basis for a sweep that

                                24



requires information to justify it in the first place," 76 F.3d
at 778, we conclude that the Buie "articulable facts"
standard was not met in this case, and we cannot sustain
the district court's grant of summary judgment for
defendants as to the protective sweep.

2. The Subsequent Search

Plaintiffs next challenge the court's disposition of their
claims that the subsequent full search of the building, also
conducted before a written search warrant was issued, was
unconstitutional. Plaintiffs argue that the district court
erred when it found that only Sgts. Kennedy and Larkin
were implicated in the search, and granted summary
judgment to Sgt. Felsing and Lt. Wilson on the ground that
"they played no part in the search." Dist. Ct. Op. at 17.

Sgt. Kennedy testified in his deposition that it was Lt.
Wilson who ordered Sgt. Larkin to conduct the search. Lt.
Wilson stated in his own deposition that he was in the
house during the time the search was being conducted,
although he claimed that he did not personally search the
premises. See App. at 439. Lt. Wilson was the highest
ranking officer at the scene and a reasonable jury could
conclude that the search was conducted under his
direction. It was therefore improper to grant summary
judgment in favor of Lt. Wilson.

However, the only evidence linking Sgt. Felsing to the
search was that he, along with Sgt. Kennedy, provided the
initial information orally to Municipal Court Judge Calloway
in order to procure a search warrant. Nothing suggests that
Sgt. Felsing knew that a telephonic or "verbal" warrant,
rather than a written warrant, was being procured and
there is no evidence that he played any part in the decision
to rely on that "verbal" warrant to conduct or authorize the
search. Inasmuch as Sgt. Felsing did not participate in the
search itself, it was not error to grant summary judgment
as to him.

To summarize, we conclude that the district court erred
in holding that there were exigent circumstances as a
matter of law to justify the warrantless arrests, that the
protective sweep was justified as a matter of law
notwithstanding the absence of articulable facts and that

                                25



there was no basis to hold Lt. Wilson responsible for the
subsequent search.

III.

QUALIFIED IMMUNITY

A.

Applicable Principles

A claim under section 1983 for damages against police
officers or other government officials will almost inevitably
raise issues as to the availability of qualified immunity.
Government officials performing discretionary functions are
"shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). In addition, and particularly in S 1983 cases
involving alleged violations of the Fourth Amendment, the
Supreme Court has emphasized that the inquiry is whether
a reasonable officer could have believed that his or her
conduct was lawful, in light of the clearly established law
and the information in the officer's possession. See Hunter
v. Bryant, 502 U.S. 224, 227 (1991) (per curiam); Anderson
v. Creighton, 483 U.S. 635, 641 (1987). Our cases have
followed that lead. See Kornegay v. Cottingham, 120 F.3d
392, 395-96 (3d Cir. 1997); Parkhurst v. Trapp, 77 F.3d
707, 712 (3d Cir. 1996); Orsatti v. New Jersey State Police,
71 F.3d 480, 483 (3d Cir. 1995).

Thus, law enforcement officials who "reasonably but
mistakenly" conclude that their conduct comports with the
requirements of the Fourth Amendment are entitled to
immunity. Hunter, 502 U.S. at 227. See also Anderson, 483
U.S. at 641; Kornegay, No. 96-7423, slip op. at 5; Orsatti,
71 F.3d at 483. In this way, "the qualified immunity
standard `gives ample room for mistaken judgments' by
protecting `all but the plainly incompetent or those who
knowingly violate the law.' " Hunter, 502 U.S. at 229

                                26



(quoting Malley v. Briggs, 475 U.S. 335, 343, 341 (1986));
Orsatti, 71 F.3d at 484. It follows that the officer's
subjective beliefs about the legality of his or her conduct
generally "are irrelevant." Anderson, 483 U.S. at 641. See
also Grant v. City of Pittsburgh, 98 F.3d 116, 123-24 (3d
Cir. 1996).

The first issue, whether the plaintiff alleges the violation
of a clearly established constitutional right, is purely a
question of law, and the Supreme Court has made clear
that this is a threshold question that should be decided
expeditiously to spare a defendant the "unwarranted
demands customarily imposed upon those defending a long
drawn out lawsuit." Siegert v. Gilley, 500 U.S. 226, 232
(1991).

The language in our cases is much less clear as to
whether the second issue, the reasonableness of the
official's mistaken belief in the lawfulness of his or her
conduct, presents an issue of law for the court or an issue
of fact for the jury. We have recently noted the "tension . . .
as to the proper role of the judge and jury where qualified
immunity is asserted." Sherwood v. Mulvihill, 113 F.3d 396,
401 n.4 (3d Cir. 1997) (citing Grant, 98 F.3d at 122). To
some extent that tension may be attributable to our effort
to comply with the Supreme Court's instruction that
qualified immunity defenses be resolved at the earliest
possible point in the litigation while recognizing the
difficulty in applying that instruction in situations where
there are disputes of relevant fact. See Grant, 98 F.3d at
122.

We are informed by the Supreme Court's discussion of
this issue in Hunter, 502 U.S. 224, a case that surprisingly
appears not to have been cited in any of this court's
reported opinions. Bryant, who was arrested by Secret
Service agents without a warrant for making threats
against the President, sued them for damages after the
criminal complaint against him was dismissed. The officers
moved for summary judgment on qualified immunity
grounds, alleging, inter alia, that they believed that they
had probable cause to make the arrest based on Bryant's
possession and delivery of a letter indicating that a "Mr.
Image" would assassinate President Reagan on the

                                27



President's upcoming trip to Germany, on tips that Bryant
had earlier that day talked of assassination generally and
told a co-worker that the President should have been
assassinated in Bonn, and on Bryant's refusal to answer
the agents' questions regarding his intent to harm the
President. Id. at 224-26. The denial of that motion by the
district court was affirmed by the Court of Appeals, which
stated that "[w]hether a reasonable officer could have
believed he had probable cause is a question for the trier of
fact, and summary judgment . . . based on lack of probable
cause is proper only if there is only one reasonable
conclusion a jury could reach." Id. at 228.

The Supreme Court disagreed, stating:

       [t]his statement of law is wrong for two reasons. First,
       it routinely places the question of immunity in the
       hands of the jury. Immunity ordinarily should be
       decided by the court long before trial. Second, the court
       should ask whether the agents acted reasonably under
       settled law in the circumstances, not whether another
       reasonable, or more reasonable, interpretation of the
       events can be constructed five years after the fact.

Id. (emphasis added) (internal citation omitted). The Court
then remanded the case for further proceedings.

A review of our opinions in the last three or four years
discloses that we have not always followed what appears to
be the Supreme Court's instruction that the reasonableness
of an official's belief that his or her conduct is lawful is a
question of law for the court, although other courts have
interpreted the opinion in that way. See, e.g., Pierce v.
Smith, 117 F.3d 866, 871 (5th Cir. 1997) (citing Hunter for
the proposition that "whether under the circumstances a
reasonable officer could believe probable cause for arrest
existed, thus giving rise to qualified immunity, is a question
of law").

Some of our cases have followed this approach, even
without citation to Hunter. In Parkhurst, for example, police
officers were sued in a S 1983 action based on the claim
that the warrantless search of plaintiff's home violated the
Fourth Amendment. 77 F.3d at 710. In reversing the
district court's grant of summary judgment on qualified

                                28



immunity grounds, we stated that "[t]o determine
reasonableness [of the search], a reviewing court must ask
`whether a reasonable person could have believed the
defendant's actions to be lawful in light of clearly
established law and the information he possessed.' " Id. at
712 (quoting Anderson, 483 U.S. at 641). We then applied
this standard and held that as a matter of law the search
violated the Fourth Amendment, and "the police officers
reasonably should have known that their conduct was
unlawful." Id. at 713.

We again applied this approach in our recent decision in
Rogers v. Powell, 120 F.3d 446 (3d Cir. 1997), where
plaintiff filed suit under S 1983 alleging that he had been
arrested with neither a warrant nor probable cause. The
district court granted the defendant officers summary
judgment on qualified immunity grounds. On appeal, we
held that no probable cause existed and turned to the issue
of qualified immunity, stating that "[w]hether a
governmental official is entitled to protection under the
doctrine of qualified immunity is a `purely legal question.' "
Id. at 454 (citing Acierno v. Cloutier, 40 F.3d 597, 609 (3d
Cir. 1994) (en banc)).

The qualified immunity issue in Rogers raised the
question whether defendant officers' reliance on the
statements of other officers was reasonable. On the issue
relevant here, the respective roles of the judge and the jury,
we stated that "where a police officer makes an arrest on
the basis of oral statements by fellow officers, an officer will
be entitled to qualified immunity from liability in a civil
rights suit for unlawful arrest provided it was objectively
reasonable for him to believe, on the basis of the statements,
that probable cause for the arrest existed." Id. at 455
(emphasis added). This court then examined the
information possessed by each defendant and determined
whether his belief that a warrant or probable cause existed
was reasonable. Id. at 455-57. Significantly, we made those
reasonableness determinations as a matter of law. Id.See
also Capone v. Marinelli, 868 F.2d 102, 104-06 (3d Cir.
1989) (stating that official's objective good faith is purely
legal question and holding it reasonable for officer to rely
on a facially valid written bulletin indicating that a warrant
existed).
                                29



We do not suggest that there may never be instances
where resort to a jury is appropriate in deciding the
qualified immunity issue. For example, in Karnes v.
Skurtski, 62 F.3d 485 (3d Cir. 1995), we reversed the
district court's grant of judgment as a matter of law on the
issue of qualified immunity. Plaintiff had alleged that
defendant police officers unlawfully searched his vehicle
following an investigatory stop. We held that because there
was a genuine issue of material fact as to whether the
officers in fact believed that certain "vegetable matter" seen
on the floor of the car was or likely could have been
marijuana, the issue of the officers' right to qualified
immunity was an issue of fact for the jury. We did not
reach the issue whether, had there been no factual dispute
about the officers' actual belief, the jury rather than the
court would have had to decide the question of the
reasonableness of their belief. Accord, Lampkin v. City of
Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) ("It must be
recognized that even though [Hunter v.] Bryant diminished
the jury's role in qualified immunity cases, it did not
entirely abolish it. Rule 56 still has vitality in qualified
immunity cases if [there are] underlying historical facts in
dispute that are material to the resolution of the questions
whether the defendants acted in an objectively reasonable
manner in view of the existing law and facts available to
them." (internal citations omitted)), cert. denied, 511 U.S.
1019 (1994).

We thus hold, following the Supreme Court's decision in
Hunter, 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, as in Karnes, will there be an issue for
the jury. The reasonableness of the officers' beliefs or
actions is not a jury question, as the Supreme Court
explained in Hunter.

                                30



B.

Application of Qualified Immunity

1. The Protective Sweep
As discussed in part II.C.1. above, the protective sweep of
Brigden's home was unlawful because the officers at the
scene did not possess "articulable facts" justifying a
reasonable belief that dangerous individuals remained
inside the home after the arrests. To prevail on their
qualified immunity claim, -- a claim not reached by the
district court -- defendants must show that their conduct
did not violate a clearly established constitutional right of
which a reasonable officer would have been aware. Because
the resolution of that issue is purely a question of law,
there is no reason why this court should not address it
now.

The Supreme Court has never had the opportunity to
apply its holding in Maryland v. Buie, 494 U.S. 325 (1990),
to protective sweeps incident to arrests made just outside
the home. And prior to today, we have never had occasion
to apply the Court's reasoning in that case in a published
opinion. Thus, on October 1, 1992, the date of the
protective sweep, defendants had no express guidance as to
the lawfulness of their conduct from any directly controlling
authority. Moreover, at that time, two courts of appeals had
upheld protective sweeps incident to arrests made outside
the home under the Buie rationale by officers who had little
more in the way of articulable facts than did the defendants
in this case. See United States v. Oguns, 921 F.2d at 446-
47; United States v. Tisdale, 921 F.2d at 1097.

Thus, we conclude that the law as to protective sweeps
incident to arrests made outside the home was not clearly
established, and even though the protective sweep
conducted by the defendant officers exceeded constitutional
boundaries, defendants were protected by qualified
immunity.

2. Exigent Circumstances

In contrast to the issue of liability for the protective
sweep, the defendants' claim that they should be afforded

                                31



qualified immunity for the arrests, even if there were no
exigent circumstances, cannot be disposed of by this court
based on the absence of "clearly established law." The law
on exigent circumstances was fully developed at the time of
the incidents at issue, and a reasonable police officer
should have known the applicable law. We note, however,
that the Hunter Court framed the inquiry to be asked by
the court as to "whether the agents acted reasonably under
settled law in the circumstances." 502 U.S. at 228. From
our vantage point, we see no "circumstances" that would
affect application of the clearly established law, but are
cognizant that this issue was not addressed by the district
court. We are unwilling to pretermit argument by the
parties that may be relevant to the district court's
determination which, as we previously stated, is essentially
one of law. Nor is it clear that there are no disputes as to
the historical facts. If there are and if they would be
material to the determination, then the resolution of those
disputes would be for the jury. In sum, we are not in a
position to resolve the possibility of qualified immunity at
this time and will remand that issue to the district court.

3. The Second Search

It is also clearly established law under the Fourth
Amendment that "searches and seizures inside a home
without a warrant are presumptively unreasonable."
Payton, 445 U.S. at 586. Such warrantless searches are
prohibited "absent probable cause and exigent
circumstances." Welsh, 466 U.S. at 749. In the case at bar,
the district court held that no exigent circumstances
justified a warrantless search, and that issue is not before
us.

With respect to the existence of clearly established law,
the parties have focused on whether defendants complied
with New Jersey's law applicable to the issuance of
warrants. Although the primary issue is whether the search
was unconstitutional under the Fourth Amendment, that
question cannot be answered without reference to state law.
In Acierno, 40 F.3d at 620, this court looked to state law to
determine whether certain rights were "clearly established."
And in the Supreme Court's decision in Davis v. Scherer,
468 U.S. 183, 193 n.11 (1984), the Court suggested that

                                  32



state law may be relevant to the immunity analysis where
that law bears directly upon the federal claim, such as
where a plaintiff 's property rights are defined by state law
for purposes of a due process challenge. Here, similar to
claims for the deprivation of property without due process,
the validity of the search under federal law depends in part
on the validity of the warrant under state law. Thus, the
officers' knowledge of the state warrant law bears directly
upon the reasonableness, under the Fourth Amendment, of
executing the search with an invalid warrant.

Under New Jersey Court   Rule 3:5-3 (1992), search
warrants may be issued   either orally or in writing after
complying with various   procedural safeguards. Written
warrants may be issued   when an applicant appears in
person before a judge providing his or her affidavit or
testimony and the judge finds that there are grounds for
issuing the warrant. The judge shall then "date and issue
the warrant identifying the property to be seized, naming or
describing the person or place to be searched and
specifying the hours when it may be executed." N.J. Ct. R.
3:5-3(a).

A telephonic warrant, on the other hand, may be issued
when the applicant is not physically present. The Rule,
however, sets forth a variety of heightened procedural
safeguards for the issuance of a telephonic warrant so that
"the integrity and soundness [of the issuing judge's]
determinations can be assured." New Jersey v. Valencia, 93
N.J. 126, 138, 459 A.2d 1149, 1155 (1983). Only a
Superior Court Judge, not a Municipal Court Judge like
Judge Calloway, is authorized to issue telephonic warrants.
The Rule further provides, inter alia, that the Superior
Court Judge must "contemporaneously record" the sworn
oral testimony of the person(s) providing information to
procure the warrant and satisfy him or herself that"exigent
circumstances exist sufficient to excuse the failure to
obtain a written warrant, and that sufficient grounds for
granting the application have been shown." N.J. Ct. R. 3:5-
3(b). Once the judge approves the warrant, the judge is
required to "memorialize the specific terms of the
authorization to search and shall direct the applicant to
enter this authorization verbatim on a form, or other

                                33



appropriate paper, designated the duplicate original search
warrant. This warrant shall be deemed a search warrant for
the purpose of [this Rule]." Id.

The judge must also "contemporaneously record factual
determinations as to exigent circumstances," certify a
transcription of the testimony, and "shall promptly issue a
written confirmatory search warrant and shall enter
thereon the exact time of issuance of the duplicate original
warrant." Id. By requiring strict adherence to these exacting
requirements, the Rule comports with the New Jersey
Supreme Court's insistence on "a reliable underpinning to
the judicial decision authorizing a search rendered over the
telephone." Valencia, 93 N.J. at 139, 459 A.2d at 1155.

The defendants do not deny that Judge Calloway lacked
any authority to issue a telephone warrant because he was
not a Superior Court Judge, that the judge did not create
a written document of the oral warrant, and that Sgt.
Kennedy did not transcribe the judge's oral warrant onto a
form "designated the duplicate original search warrant."
Without the creation of such a written record, "the
subsequent written warrant cannot be reliably compared to
any prior recordation to determine its fidelity to the
contents of the original application and oral authorization."
Valencia, 93 N.J. at 135, 459 A.2d at 1154.

Thus, with respect to the second search of Brigden's
residence, the district court, albeit granting summary
judgment for Felsing and Wilson on the ground that they
did not participate in the search, denied Larkin's and
Kennedy's motion for summary judgment on qualified
immunity grounds and directed that that issue be the
subject of the jury trial. At the close of the evidence in that
trial, presided over by the magistrate judge, plaintiffs filed
a motion for judgment as a matter of law on the issue of
qualified immunity, which the magistrate judge denied. He
charged the jury to decide whether the defendants actually
believed that the actions they took were lawful, whether the
defendants were motivated by malice or acted in callous
disregard or indifference to plaintiffs' rights, and whether
their mistake was the sort that a reasonably prudent officer
might make. The jury, answering special interrogatories,
decided that the warrant was invalid but that Sgt. Larkin,

                                34



the only defendant as to whom these interrogatories
applied, had an objectively reasonable good faith belief that
he was authorized to search Brigden's residence and
vehicles.

As is evident from our prior discussion of the principles
of qualified immunity, the first two questions given to the
jury were either erroneous or irrelevant. However, we need
not dwell on that error because the third question correctly
framed the immunity issue. And although it would
ordinarily have been a question of law for the court, in this
case there were some historical facts at issue. Specifically,
it appears to have been in dispute whether Sgt. Kennedy
appeared before Municipal Court Judge Calloway for a
telephonic warrant before the second search proceeded, and
there was even a factual issue as to whether Judge
Calloway issued a telephonic or oral warrant. Thus, this
situation is not dissimilar to that in Karnes where we held
that a factual dispute relating to qualified immunity must
be sent to the jury, and suggested that, at the same time,
the jury would decide the issue of objective reasonableness.
We see no reversible error in the determination that Sgt.
Larkin was entitled to qualified immunity.

The issue of qualified immunity as to Sgt. Kennedy was
never resolved by the jury as that issue was foreclosed by
the jury's response to the interrogatories dealing with the
role played by each of the remaining defendants in the
search, and thereafter with causation and damages. The
first interrogatory as to defendant Sgt. Kennedy asked: "Do
you find that Officer William Kennedy entered and searched
the plaintiffs' residence and/or vehicles on the afternoon of
October 1, 1992?" App. at 1194. The jury was told that if
it answered "No" to this question, it should not further
consider liability against Sgt. Kennedy. Plaintiffs objected to
this interrogatory at trial on the ground that it unduly
limited the basis on which Sgt. Kennedy could be held
liable, and raise their objection again on appeal.

Plaintiffs argue that they presented ample evidence at
trial that Sgt. Kennedy played a crucial role in the unlawful
search, such as by conveying to the officers at the scene
that he had obtained a valid search warrant and by failing
to direct that the search be stopped as soon as he realized

                                35



that there was no warrant.1 Therefore, they contend that
the jury should have been allowed to consider whether
Kennedy should be held responsible for his role in the
search, regardless of whether he physically entered
Brigden's residence.

We have plenary review over the propriety of the
challenged interrogatory as it involves a question of the
correct legal standard. Mosely v. Wilson, 102 F.3d 85, 94
(3d Cir. 1996). The limitation of the interrogatory to
whether Sgt. Kennedy "entered and searched" the residence
reflects an erroneous view of the law. Sgt. Kennedy may be
held liable for his role in the illegal search if the jury found
that he participated by procuring an invalid warrant or
authorizing the search based on that warrant. See, e.g.,
Malley, 475 U.S. at 345 (holding that police officer can be
held liable for applying for and relying upon a warrant that
no reasonable officer would rely upon, despite the fact that
a magistrate judge issued the warrant). Therefore, plaintiffs
were entitled to have the jury decide Sgt. Kennedy's liability
based on the totality of his conduct.

Similarly, we have held it was error to grant summary
judgment for Lt. Wilson as to the second search. It follows
that he too will be entitled to a determination on his
qualified immunity claim. Moreover, we note from our
decision in Rogers that the entitlement to qualified
immunity may depend upon circumstances individual to
the role played by each defendant, an issue that the district
court will have to consider in the first instance.
_________________________________________________________________
1. At trial the plaintiffs presented transcripts of the radio
transmissions
which occurred during the course of the search, and Sgt. Kennedy read
his own statement made during the search to Sgt. Larkin that "I'm
finishing typing [the warrant] out. I had to retype everything because
nobody knows what the F. they're doing . . . . [Wilson] got the telephonic
search warrant . . . now apparently that wasn't done. So we had to do
the paperwork. I got the affidavit done, the search warrant is in the
typewriter." App. at 846.

                                36



IV.

CONCLUSION

We affirm the district court's grant of summary judgment
to the defendants on the issues of probable cause to arrest
and the alleged use of excessive force. We reverse the
district court's grant of summary judgment to defendants
Sgt. Felsing and Lt. Wilson on the issue of the warrantless
arrest but affirm the judgment in favor of Sgts. Larkin and
Kennedy.

With respect to the searches, we reverse the district
court's holding that the protective sweep was lawful, but
hold that defendants were entitled to qualified immunity on
that claim. As to the second warrantless search, we affirm
the grant of summary judgment for Sgt. Felsing, but hold
that plaintiffs were entitled to a jury trial as to Lt. Wilson,
in addition to Sgts. Kennedy and Larkin, and that the
interrogatory given to the jury regarding Sgt. Kennedy's role
in the second search was erroneous.

On remand, the jury will have to decide whether Lt.
Wilson and Sgt. Felsing were justified by exigent
circumstances for making a warrantless arrest inside
Brigden's home and, if not, and assuming that relevant
historical facts remain in dispute, whether they are entitled
to qualified immunity. The jury will also have to decide
whether the actions of Lt. Wilson and Sgt. Kennedy
constituted participation in the second search and, if
material historical facts remain in dispute, whether they
are entitled to qualified immunity. Finally, if the jury finds
for plaintiffs on the preceding issues, the jury must then
determine causation and damages.

For the foregoing reasons, we will affirm in part, reverse
in part, and remand for further proceedings consistent with
this opinion.
                                37



POLLAK, District Judge, concurring in part and dissenting
in part.

Except as to one issue, I find the court's opinion in this
difficult case masterly: comprehensive, cogent, correct. The
one issue on which I part company with the court is that
canvassed in part II.B of the court's opinion. The court
there sustains the district court's grant of summary
judgment dismissing plaintiffs' claims that the police used
excessive force in arresting them. Stating that it is
"reluctant to establish a precedent that would subject every
police arrest of a group of possible violent offenders to
compliance with the Marquis of Queensberry Rules of fair
play," the court, while acknowledging that "these police
officers came close to the line," concludes that "these
circumstances, in totality, do not rise to a Fourth
Amendment violation." With great respect, I disagree. I
believe that a fact-finder could, on the evidence before the
district court, reasonably conclude that the police officers
crossed the line. I think it error for this court to hold that
arrest methods which the court characterizes as "more akin
to . . . Rambo-type behavior . . . than the police conduct
expected in a quiet, family seaside town," merit, as a matter
of law, a constitutional seal of approval. In my judgment,
the district court should have permitted the question
whether excessive force was used to go to the jury.

I will not undertake to set forth at length the factual
record which underlies my assessment, since the court's
opinion fairly states the essential facts. I will, however, set
the general scene and highlight certain details which seem
particularly relevant to the excessive-force issue. On
October 1, 1992, the Sea Isle Police Department deployed
all of its on-duty officers, and brought in reinforcements
from neighboring towns as well as from its own off-duty
roster, to arrest four men who were inside a building and
suspected of an assault involving a pistol. At the time of the
arrests, various officers stationed outside the building
carried, aside from their standard sidearms, .30 caliber
rifles, submachine guns, and shotguns. One member of the
SWAT team was posted as a sniper. Although no witness
recounted the exact number of officers on the scene, a
conservative figure can be assembled from the record of

                                38



some twenty officers on the scene. This means that at the
point of arrest, which was effectuated by SWAT team
members wearing body armor, the police outnumbered the
suspects by a ratio of at least five to one. When the four
plaintiffs, pursuant to police directive, emerged from the
building, they were made to lie down in the dirt and
menaced with loaded revolvers by officers who, allegedly,
were threatening to "blow your . . . fucking heads off."

I believe that, at the very least, the plaintiffs have raised
a genuine issue of material fact concerning whether it was
"objectively reasonable," under the standards the Supreme
Court articulated in Graham v. Connor, 490 U.S. 386, 396
(1989), for the officers to use the force they did in arresting
the plaintiffs. Graham's fact-sensitive 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 officers or others, and whether [the suspect] is
actively resisting arrest or attempting to evade arrest by
flight." Id. In light of the record before the court, a jury
could reasonably find that the force the officers employed in
making this arrest was excessive.

The record, viewed, as it must be, most favorably toward
the plaintiffs, indicates that four suspects--the very
number the police expected to find--filed out of the building
as directed by the officers. The police radio transcript cited
in part II.C.1 of the opinion indicates that the officers were
apprised, before all the suspects had come out of the
building, that the gun allegedly involved was not on the
person of any of the arrestees.2 On this account, plaintiffs
have certainly raised a triable issue of whether it was
objectively reasonable under these circumstances to hold a
loaded weapon to the head of a suspect and employ death
threats punctuated by obscenity while the apparently
_________________________________________________________________

2. The police radio transcript quotes Mr. Devlin as stating "there's only
one gun involved, it's a pistol in the brown van in front of the house."
The Devlin statement tends to undercut the court's statement in part
II.B that the gun "was still unaccounted for." To the extent that the
degree of force deployed by the police in making the arrests may be said
to have depended on alleged uncertainty as to the whereabouts of the
gun, there would appear to be dispute about a material fact.

                                39



unarmed and cooperative suspects were held to the ground
and handcuffed. Considering the formidable array of
officers and firepower stationed outside, and given that
plaintiffs apparently did not resist arrest, it would be
reasonable for a jury to conclude that the force deployed
was excessive. Therefore, summary judgment in favor of the
defendants was not appropriate. See Groman v. Township of
Manaplan, 47 F.3d 628, 634 (3d Cir. 1995)(reversing grant
of summary judgment on excessive-force claim because jury
could have found police behavior unreasonable).

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                40
