                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-30-2005

Estate Robert Smith v. Marasco
Precedential or Non-Precedential: Precedential

Docket No. 04-2146




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                                  PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                    No. 04-2146


 ESTATE OF ROBERT CECIL SMITH; PAULINE SMITH,
  INDIVIDUALLY AND AS ADMINISTRATOR OF THE
ESTATE OF ROBERT C. SMITH; DANA SMITH; WANDA
                    SMITH,

                         Appellants

                        v.

   TROOPER JAMES MARASCO; TROOPER NICHOLAS
   SCIANNA; TROOPER THOMAS WEAVER; TROOPER
       ANDREW L. WENGER; CAPTAIN MICHAEL J.
       MARCANTINO; LIEUTENANT BERRY REED;
   LIEUTENANT EDWARDS; LIEUTANT SCHAEFFER;
   LIEUTANT SNYDER; CORPORAL DANTE; ROBERT
JOHNSON; CORPORAL GREG HALL; JOHN DOE #10-#25,
WHOSE NAMES ARE CURRENTLY UNKNOWN; DANTE
 ORLANDI; THOMAS GREGORY HALL, TEDESCUNG L.
 BANDY; BARRY L. BRINSER; GREGORY BROADDUS;
 CARBONELL; COLON; JOHN R. COMERER, JR.; GLENN
C. DOMAN; JOHN EDWARDS; WAYNE S. ELSER; FRANK
   L. FETTEROLF; DAVID FRISK; GILLISON; JAMES A.
  HAMILL; MARTIN L. HENRY, III; JOSEPH KALIS; A. J.
      KRAWCZEL; WILLIAM J. MCCLURE; THOMAS
    MCDANIEL; SHAWN MELL; ARTHUR MOSS, JR.;
  WILLIAM MOYER; ED MURPHY; KEVIN REICHERT;
 CHARLES RODGERS; MERVIN RODRIQUEZ; THOMAS
  RODRIQUEZ; KEITH A. STONE; GREGORY STUMPO;
   DOMINIC G. VISCONTI; WILLIAM WHITE; JOSEPH
    WILSON; GREGORY WIRTH; MICHAEL WITMER;
          KENNETH YODER; JOHN DOE #1-#25

       ____________________________________
       On Appeal From the United States District Court
             For the Eastern District of Pennsylvania
                     (D.C. No. 00-cv-05485)
     District Judge: Honorable Franklin S. Van Antwerpen
        _______________________________________

                     Argued March 7, 2005

 Before: SCIRICA, Chief Judge, ROTH and BECKER, Circuit
                          Judges

                  (Filed: November 30, 2005)

GERALD J. WILLIAMS, ESQ.
ANDREW F. ERBA, ESQ.
GERALD J. GRANT, JR., ESQ.
Williams, Cuker & Berezofsky
1617 John F. Kennedy Boulevard
One Penn Center, Suite 800
Philadelphia, PA 19103

JORDAN B. YEAGER, ESQ. (Argued)
Boockvar & Yeager
8 West Oakland Avenue
Doylestown, PA 18901

      Attorneys for Appellants

GERALD J. PAPPERT
Attorney General
J. BART DeLONE (Argued)
Senior Deputy Attorney General
CALVIN R. KOONS
Senior Deputy Attorney General
JOHN G. KNORR, III
Chief Deputy Attorney General
Chief, Appellate Litigation Section
Office of Attorney General
Appellate Litigation Section
15 th Floor, Strawberry Square

                                 2
Harrisburg, PA 17120

       Attorneys for Appellees
                  _______________________

                          OPINION
                   _______________________

BECKER, Circuit Judge.

        This strange civil rights case is before us for a second
time, see Estate of Smith v. Marasco, 318 F.3d 497 (3d Cir.
2003) (Smith I), in the form of an appeal by the Estate of Robert
Cecil Smith from an order of the District Court entered
following remand and additional discovery. Plaintiffs filed suit
under 42 U.S.C. § 1983, arguing that defendants had violated
Smith’s constitutional rights in the hours prior to his death. The
District Court, for the second time, granted summary judgment
to all defendants on all claims.
        For the reasons that follow, we will affirm in part, reverse
in part, and remand for further proceedings. More specifically,
we will reverse with respect to the claim that defendants
Fetterolf, Hall, and Marcantino used excessive force in violation
of the Fourth Amendment, and with respect to the claim that
defendants Marasco and Scianna conducted an unreasonable
search, also in violation of the Fourth Amendment. However,
we will affirm the District Court’s grant of summary judgment
on all other claims against all defendants, on the grounds of
either: (1) lack of their personal involvement in the putative
constitutional violations; (2) the absence of a genuine issue of
material fact that might give rise to liability on the Fourth
Amendment excessive force and the Fourteenth Amendment
state-created danger claims; or (3) the presence of qualified
immunity with respect to those claims.
        Because of the multiplicity of defendants, and the fact
that several claims are asserted against each, we will address the
defendants and claims, where possible, in groups.

                 I. Facts and Procedural History



                                 3
        Plaintiffs’ decedent, Robert Smith, was a Vietnam veteran
who suffered from a variety of mental and physical ailments,
including Post-Traumatic Stress Disorder (PTSD), flashbacks to
Vietnam, and serious heart problems. Prior to his death, Smith
had had several encounters with members of the state police,
Troop L Reading. The encounters stemmed primarily from an
ongoing feud between Smith and one of his neighbors, Robert
Shafer. On a previous occasion, Shafer had accused Smith of
shooting out a light Shafer installed on his property. The state
police investigated the incident, but they did not charge Smith,
although many of the troopers believed that he was responsible
for the shooting. As a result of their interaction, some of the
troopers had at least limited knowledge of Smith’s medical
problems, although the extent of their knowledge is disputed by
the parties.
        On the afternoon of July 10, 1999, the state police
received a complaint from Shafer alleging that Smith was
shining a bright light into his backyard. Troopers James
Marasco and Nicholas Scianna responded to the call and
proceeded to Smith’s residence several hours later. After not
receiving a response at the front door, the troopers went around
the house to see if they could locate Smith in his closed-in back
porch.
        After they were unable to find Smith behind his house,
the troopers returned to their car and called their barracks for
further instructions. They spoke with Corporal Mervin
Rodriguez, who instructed them to attempt to contact Smith by
phone, but, in the event they were unable to reach him, to leave a
citation on the property and return to the barracks. After their
own efforts to contact Smith over the phone were unsuccessful,
the two troopers asked the barracks Personal Communication
Officer (PCO) to attempt to reach Smith.
        While they were waiting for the PCO to respond, the
troopers returned to Smith’s backyard. During this time,
Trooper Scianna observed a red light in one of the windows of
the house, which he first assumed to be a light from a video
camera. He then noticed a red dot on Trooper Marasco’s
clothing, and at that point assumed that the light was a laser sight
from a firearm. Fearing for their safety, the troopers retreated to
their vehicle and called the barracks for assistance.

                                 4
        The two officers again spoke with Corporal Rodriguez,
who instructed them to secure the area. Rodriguez requested
backup from local police officials and proceeded to Smith’s
house himself, arriving there around 11 p.m. By this point,
additional officers, including Trooper Thomas Rodriguez, had
arrived at the scene and formed a perimeter around Smith’s
house.
        Shortly after arriving and joining the perimeter, Trooper
Rodriguez observed a figure leave the house through the back
door, cross the yard, and enter a nearby tool shed. He later
testified that the individual appeared to be carrying something
under his arm. Rodriguez observed the figure return to the
house, only to leave again a few minutes later. At this point, he
called out to the individual but received no response. Acting at
Trooper Rodriguez’s suggestion, Corporal Rodriguez then
ordered the officers to tighten the perimeter around the yard in
order to cut off access to the house.
        At around 11:30 p.m., Corporal Rodriguez contacted
Lieutenant Frank Fetterolf, requesting that Fetterolf activate the
Special Emergency Response Team (SERT), a state police unit
trained to deal with high-risk, volatile situations. Fetterolf
relayed the request to the SERT coordinator, Corporal Gregory
Hall, who contacted the members of SERT and instructed them
to proceed to Smith’s residence.
        At about 1:30 a.m., the SERT team began to arrive. Some
thirty members of SERT, “wearing riot gear and camouflage and
armed with various weapons,” responded. Smith I, 318 F.3d at
503. Sometime after SERT began to assemble, Fetterolf asked
Lieutenant Frank Weaver to investigate the incident involving
the apparent laser sight and, if necessary, obtain a warrant.
Weaver did so and obtained an arrest warrant for Smith,
charging him with aggravated assault, simple assault, and
reckless endangerment.1 At around the same time, Trooper
Andrew Wenger also obtained a search warrant for the
residence. In addition, at some point during the evening,
Fetterolf spoke with Captain Michael Marcantino, Troop



       1
        The arrest warrant was withdrawn on July 12, 1999. See
Smith I, 318 F.3d at 504.

                                5
Commander for Troop L, who was camping on the night of the
10th, to update him on SERT’s activities.
        After arriving, Fetterolf and Hall established a command
post from which they directed SERT’s activities for the
remainder of the night. They tried to contact Smith using the
telephone and a public address system, but were unsuccessful.
At around 5 a.m., they ordered SERT members to break several
of Smith’s windows with rocks in an effort to induce him to
communicate with them. One hour later, SERT members
entered Smith’s shed using tear gas. Finally, at 6:43 a.m.,
members the SERT team stormed Smith’s house using “flash-
bang distraction devices,” small explosives designed to briefly
disorient and stun anyone in the immediate vicinity.
        After SERT cleared Smith’s residence, state troopers
executed the search warrant. They were unable to find Smith
inside his house, but they did locate his identification as well as
heart medication that he was required to take in the wake of a
recent operation. They also recovered several weapons,
although they did not find one with a laser sight.
        At some point after clearing the house, the troopers began
to search the wooded area behind Smith’s yard. During this
time, Smith’s two daughters and at least two other individuals
contacted the state police in an effort to assist in locating Smith.
The police generally rebuffed these efforts, citing safety
concerns. However, they did permit one of Smith’s neighbors,
Christopher Zwicky, to join them in a helicopter search of the
woods behind Smith’s house. The police discovered Smith’s
cellular phone in the woods, but were unable to locate Smith.
After approximately two hours, they abandoned the search.
        About one week later, a friend of Smith’s discovered his
body in the same woods, not far from where his phone was
found. Smith had died of heart failure brought on, according to
the Smiths, by the stress of the evening.
        Smith’s estate and various family members (“the Smiths”)
then filed suit against numerous police officials, named and
unnamed, who were involved in the events of the evening. The
suit alleged violations of the First, Fourth, and Fourteenth
Amendments as well as numerous violations of state law. After
discovery, the District Court granted summary judgment for all
defendants on all claims, finding that plaintiffs could not show

                                 6
that any of Smith’s constitutional rights were violated. The
Smiths appealed, and, in Smith I, we affirmed in part and
reversed in part.
        We held that defendants were not entitled to summary
judgment on three claims: the Smiths’ claim that Officers
Marasco and Scianna conducted an unreasonable search in
walking around to the back of Smith’s house and in entering
Smith’s garage; the Smiths’ claim that the officers responsible
for activating and directing SERT used excessive force in doing
so, in violation of the Fourth Amendment; and the Smiths’ claim
that the use of SERT and other actions by the officers amounted
to a state-created danger in violation of Smith’s substantive due
process rights under the Fourteenth Amendment. We affirmed
with regard to all other federal claims raised.
        On remand, following additional discovery, the District
Court again granted summary judgment with respect to all
federal claims. It again held that plaintiffs could not establish
that Troopers Marasco and Scianna conducted an unreasonable
search in walking into Smith’s backyard. With respect to the
excessive force and state-created danger claims, the District
Court concluded that all defendants were entitled to summary
judgment, on the grounds that they either lacked sufficient
personal involvement in the events leading to Smith’s death or
that they were entitled to qualified immunity. Qualified
immunity was not at issue in the first appeal.
        The Smiths then filed a second appeal to this Court.
Insofar as the appeal challenges the District Court’s
determinations regarding the personal involvement of defendants
Doman, Krawczel, Carbonell, Weaver, and Wenger, it may be
summarily disposed of and we do so in the margin.2 We



       2
         The District Court granted summary judgment in favor of
defendants Doman, Krawczel, Carbonell, Weaver, and Wenger on
the grounds that they were not sufficiently involved in the events
that allegedly led to Smith’s death to be held liable. In essence, the
Court concluded that there was insufficient evidence in the record
for a reasonable jury to conclude that any of these defendants had
violated Smith’s civil rights. We agree with the District Court in
this regard, and will affirm the grant of summary judgment with

                                  7
respect to these five defendants.
        Sergeant Glen Doman served as the leader of SERT’s
negotiation team on the evening of the 10th. In addition, he was
responsible for maintaining the command post log. Sergeant A.J.
Krawczel served on SERT’s negotiation team that evening and
assisted in gathering information.          He interviewed Shafer
concerning the earlier fight between the two neighbors, and he later
contacted the Lebanon Veterans’ Administration Hospital in order
to obtain information regarding Smith’s medical condition. He
then prepared a report detailing his findings. The report was
logged in at the command post at 3:10 a.m. We agree with the
District Court that there is no basis for a reasonable jury to
conclude that either trooper violated Smith’s constitutional rights.
While both troopers were members of SERT, there is no evidence
that either had any operational control or was otherwise responsible
for the decisions that were made that evening.
        Corporal Martin Carbonell was a member of SERT and
served in the SERT command center the night of the incident. At
some point in the evening, Carbonell spoke with Trooper Thomas
Weaver and advised Weaver to obtain a warrant. Other than this
conversation, the Smiths have pointed to no evidence from which
a jury could conclude that Carbonell violated Smith’s constitutional
rights, and we find none. Similarly, we do not see any reasonable
argument for concluding that the advice Carbonell gave to Weaver
violated Smith’s rights.
        Weaver and Wenger’s involvement was limited to obtaining
the search and arrest warrants. We held in Smith I that probable
cause existed to obtain the warrants, and there is no basis for
reconsidering that ruling. See 318 F.3d at 522. The Smiths
nonetheless argue that Weaver misrepresented certain material
facts in his affidavit in support of his warrant application. For
instance, the Smiths allege that Weaver submitted a firearms report
for a “Robert Charles Smith” (rather than “Robert Cecil Smith”) in
conjunction with the warrant application. We agree with the
District Court that this error does not amount to a violation of
Smith’s constitutional rights. There is no dispute that Smith owned
several legal firearms, and we believe that probable cause to obtain
the warrants would have existed independent of the firearms report.

                                 8
also set forth the familiar standard of review in the margin.3


We recognize that Trooper Weaver had greater knowledge of
Smith’s medical condition than many of the other officers at the
scene. Weaver was aware that Smith suffered from heart problems
and had been present on a previous occasion when Smith suffered
from an apparent Vietnam flashback. Yet this history does not
change the fact that the Smiths have not pointed to any actions
taken by Weaver on the evening in question that could lead a
reasonable jury to conclude that he violated Smith’s constitutional
rights. The same is true of Trooper Wenger, who was less familiar
with Smith’s condition. We therefore conclude that no reasonable
jury could have concluded that Weaver or Wenger violated Smith’s
constitutional rights.
       3
         Since the District Court granted summary judgment to all
defendants, we exercise plenary review. Summary judgment is
appropriate if “there is no genuine issue as to any material fact and
the moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c). In reviewing a decision to grant summary
judgment as to any particular claim on the basis of qualified
immunity, we conduct a two-step inquiry. See Saucier v. Katz, 533
U.S. 194, 201 (2001). First, we ask whether a reasonable jury
could conclude that the victim’s constitutional rights were violated
by the defendant. Second, we ask whether a reasonable officer in
the defendant’s position would have been aware that his conduct
violated the victim’s constitutional rights. More specifically, the
second question requires us to ask whether the right the defendant
stands accused of violating was “clearly established” at the time of
the incident in question. If the answer to either question is no, then
the defendant is entitled to summary judgment
        The Supreme Court has emphasized that the purpose of
qualified immunity is to spare the defendant from having to face
trial if a reasonable officer in his position would not have
recognized that his conduct violated the Constitution. Id. at 200-
02. Therefore, courts have an obligation to conduct the qualified
immunity inquiry at the earliest possible point before trial.
However, in reviewing a motion for summary judgment on the
basis of qualified immunity, normal principles of summary
judgment still apply, and any disputes of fact must be resolved in

                                  9
                  II. The Excessive Force Claim

        Use of excessive force by a state official effectuating a
search or seizure violates the Fourth Amendment. As we noted
in Smith I, “[t]o 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.” 318 F.3d at 515 (quoting Abraham v. Raso, 183
F.3d 279, 288 (3d Cir. 1999)). In Smith I, we held that SERT’s
activities constituted a seizure, and that the only remaining
question was whether the force used in doing so was reasonable.
See id. at 515.4 We identified several factors that a court should
consider in determining whether a seizure was reasonable,
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 actively is resisting arrest or attempting
to evade arrest by flight.” 318 F.3d at 515 (citations omitted).
        In setting aside the District Court’s initial decision, we
concluded that it had failed adequately to address all of these
factors. In particular, we emphasized the need to consider “the
severity of the threat to which officers were responding.” Id. at
516. We observed that, while Smith was known to possess
firearms, there

       was no indication that Smith had been using a gun
       recently or that Smith ever [had] used a gun in a
       violent manner. No arrest was made, and
       [evidence suggests] that an arrest warrant was not
       even sought until after SERT was activated. Most
       importantly, there is no indication in the record


favor of the plaintiff. Thus, if there are factual disputes that are
material to the question whether a reasonable officer in the
defendant’s position would have realized that his conduct violated
the victim’s constitutional rights, it is inappropriate to grant
summary judgment.
       4
       The District Court’s first opinion addressed the question
whether a seizure had occurred in considerable detail. See 227 F.
Supp. 2d at 340-43.

                                10
       that Smith had any history of violence of which the
       officers may have been aware.” 318 F.3d at 517.
       We therefore reversed the District Court’s
       determination that no constitutional violation had
       occurred.

       On remand, the District Court concluded that the troopers
were entitled to qualified immunity on the excessive force claim.
In so doing, it disputed this Court’s finding that Smith did not
have a history of violence in light of “the quite violent past
conduct of Smith in shooting out his neighbor’s lights and
riddling his neighbor’s home with bullet holes.” 2004 U.S. Dist
LEXIS 5613 at *35. The District Court suggested that perhaps
the Smith I panel was not aware of the incident in which Smith
allegedly fired at Shafer’s lights, although the opinion in Smith I
did mention it several times. See, e.g., 318 F.3 at 515. While we
agree with the District Court that some of our statements in
Smith I did not fully reflect the troopers’ understanding of
Smith’s volatile nature, we nonetheless believe that we
considered all relevant facts in our decision.5
       In holding that all defendants were entitled to qualified
immunity on the excessive force claim, the District Court relied
heavily on its earlier analysis. In its review of the excessive
force claim, the District Court did not consider the actions of
each defendant individually, nor did it distinguish between the



       5
        The Smiths argue that, because Smith was never criminally
charged and there was no conclusive evidence that he was
responsible for shooting out Shafer’s lights, the police were
unjustified in believing that Smith was prone to violence. We
disagree. While there may not have been sufficient evidence to
charge Smith with a crime, several troopers testified that they
believed that he was, in fact, responsible for shooting out Shafer’s
lights. The Smiths have pointed to no evidence from which we
could conclude that this testimony was false or that the troopers
were unreasonable in their belief that Smith has shot at Shafer’s
lights. Therefore, it was not unreasonable for the troopers to
consider this incident in planning their response on the evening of
the 10th.

                                11
decision to activate SERT and SERT’s later activities once the
team arrived at Smith’s house. Rather, it found that the troopers’
understanding of Smith’s past history, coupled with their
knowledge that he possessed firearms and their belief that he had
targeted Marasco with a laser sight, would have led a reasonable
officer to conclude that the force that was later used was not
excessive. Based on our review of the record, we believe that it
is necessary to distinguish between the initial decision to activate
SERT and the subsequent decision to storm Smith’s shed and
house.

               A. The Decision to Activate SERT

        We agree with the District Court that all officers are
entitled to qualified immunity with respect to the decision to
activate SERT. We stressed in Smith I that a decision to employ
a SWAT-type team can constitute excessive force if it is not
“objectively reasonable” to do so in light of “the totality of the
circumstances.” 318 F.3d at 515. As we noted, the question
whether the use of force is “objectively reasonable” is
determined by analyzing several factors. We looked to the
factors listed in our decision in Sharrar v. Felsing, 128 F.3d 810
(3d Cir. 1997), as well as those in the Supreme Court’s decision
in Graham v. Connor, 490 U.S. 386, 396 (1989). In Sharrar we
held that a reasonable officer must consider:

       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. . . [whether] the physical force applied was
       of such an extent as to lead to injury . . . 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.



                                12
128 F.3d at 821-22 (internal quotations omitted).
        Sharrar was decided two years before the events at issue
in this case. Therefore, it is appropriate for us to rely on that
decision in our analysis of whether the officers are entitled to
qualified immunity, as the contours of the right at issue here—as
set forth in Sharrar—were “clearly established” at the time the
troopers decided to activate SERT. A reasonable officer would
be guided by the Sharrar factors in determining whether to use
overwhelming force in a given situation. Thus, if an officer
applies the Sharrar analysis in an unreasonable manner, he is not
entitled to qualified immunity.
        Based on the record before us, we cannot conclude that
the troopers applied the Sharrar factors in an unreasonable
manner in choosing to activate SERT. We held in Smith I that
the Smiths had offered sufficient evidence to make the question
whether “the decision to activate SERT . . . [was] objectively
reasonable,” see 318 F.3d at 516, appropriate for resolution by a
jury, and we do not disturb that conclusion today. We do find,
however, that, even if the decision to activate SERT was
objectively unreasonable, a reasonable officer would not have
thought his conduct to be unlawful. Thus, even if the troopers
violated Smith’s constitutional rights in activating SERT, they
are entitled to qualified immunity with respect to that decision.
        As the District Court noted, the troopers believed that
Smith was armed and that he had targeted a police officer with a
laser-sighted weapon.6 Thus, at the time the decision to activate
SERT was made, the troopers could reasonably have believed
that Smith posed a serious threat. In addition, the troopers
apparently made the decision to activate SERT without full
knowledge of Smith’s medical condition. While Marasco and
Scianna had some understanding of Smith’s health problems,
there is no evidence that they were involved in the decision to
activate SERT. The troopers who were responsible for the
decision to activate SERT—which involved M. Rodriguez,



       6
       The Smiths submit that there is evidence in the record
suggesting that the laser sight actually came from somewhere in the
wooded area behind Smith’s house, rather than the house itself.
This does not change our analysis in any meaningful respect.

                                13
Fetterolf, and Hall, among the remaining defendants—had
limited knowledge of Smith’s condition at the time the decision
was made. Thus, it was not unreasonable for them to conclude
that the display of force entailed in the activation of SERT was
not “of such an extent as to lead to injury.” 7
        The Smiths suggest that, because others in the Troop were
aware of Smith’s health problems, we can impute this
knowledge to the entire troop. We disagree. In order to prevail
on a § 1983 claim against multiple defendants, a plaintiff must
show that each individual defendant violated his constitutional
rights. Thus, to the extent that knowledge of Smith’s medical
condition would alter the excessive force inquiry as to individual
defendants, the Smiths must point to some evidence from which
we could conclude that those particular defendants had
knowledge of Smith’s condition.
        For the foregoing reasons, we affirm the District Court’s
grant of summary judgment with respect to this aspect of the
Smiths’ claim.

           B. The Storming of Smith’s House and Shed

       Our conclusion that a reasonable officer would not have



       7
         In Smith I, we suggested that the fact that SERT was
activated before a warrant had been obtained was relevant to the
question whether the use of force was excessive. See 318 F.3d at
517.      Several defendants testified that, absent exigent
circumstances, SERT is typically not activated unless a warrant has
been issued or steps have been taken to obtain one. While this fact
is certainly relevant to the reasonableness inquiry, we do not think
it outweighs the other factors which militate in favor of concluding
that a reasonable officer would not have concluded that the
decision to activate SERT violated Smith’s Fourth Amendment
rights. As we held in Smith I, probable cause existed for the police
to obtain an arrest warrant for Smith. See 318 F.3d at 515. Their
failure to do so prior to the decision to activate SERT does not
necessarily imply that a reasonable officer would have realized that
activating SERT violated Smith’s constitutional rights.


                                14
believed that the decision to activate SERT was unlawful does
not necessarily entail that the same is true of all subsequent
decisions regarding the use of SERT. Our review of the Sharrar
factors leads us to conclude that, when the facts are viewed in
the light most favorable to the plaintiffs, a reasonable officer
would have concluded that the decision to storm Smith’s shed
and house using flash-bang distraction devices violated Smith’s
constitutional rights.
        We reach this conclusion for several reasons. First, the
immediacy and severity of the threat had significantly lessened
in the time between the activation of SERT and the decision to
enter Smith’s house. More precisely, at least six hours had
elapsed between Marasco and Scianna’s call to the PCO and the
storming of Smith’s house. See 318 F.3d at 517. During this
time, with the exception of the possible sighting in the backyard,
the troopers had had no contact with Smith. Thus, while a
reasonable officer could have concluded that the initial nature of
the threat justified activating SERT, we also think that a
reasonable officer would have reassessed the danger Smith
posed during the intervening hours.
        More importantly, during the time that elapsed between
the activation of SERT and the decision to storm Smith’s house
and shed, the members of SERT had learned a great deal more
about Smith’s medical condition. By the time the decision to
storm the house was made, the leadership of the SERT team was
aware that Smith had heart problems and that he suffered from
flashbacks to Vietnam. Given Smith’s medical condition, a
reasonable officer would have concluded that the physical force
used “was of such extent to lead to injury.” See Sharrar, 128
F.3d at 822. Indeed, plaintiffs’ police practices expert, Dr. Paul
McCauley, concluded that the officers’ conduct “fell below
accepted police practices” for dealing with Emotionally
Disturbed Persons (EDPs). We therefore think that, under these
circumstances, a reasonable officer would have recognized that
an assault on Smith’s house involving the use of flash-bang
distraction devices, and a similar assault on his shed using tear
gas constituted an excessive use of force.
        We recognize that, in certain situations, the volatile nature
of a suspect will weigh in favor of a greater show of force. In all
such cases, however, the officer’s actions must be evaluated in

                                 15
light of the factors listed in Sharrar. When viewing the facts in
the light most favorable to the Smiths, we believe that a
reasonable officer would have concluded that, at the time the
decision was made, Smith did not pose a threat that was
sufficiently serious and immediate as to require storming his
house.8 At all events, a reasonable officer would have
recognized the significant risk that Smith would suffer serious
harm as a result of the decision to do so. Balancing these
considerations, we think that a reasonable officer would have
concluded that storming the house would violate Smith’s
constitutional rights.
        It is useful to compare the decision to activate SERT with
the decision to enter Smith’s house and shed using the tactics
employed here. There can be no dispute that the force employed
in storming the house and shed was far greater than that used in
the deployment of SERT. In addition, as the result of the report
of Trooper Krawczel, see supra n. 2, the troopers had at least
some more knowledge of Smith’s medical condition at the time
they decided to storm the house than they did at the time SERT
was activated. Finally, we think a reasonable officer would have
concluded that the threat posed by Smith had lessened in the
intervening several hours. Thus, in areas critical to the Sharrar
analysis, the decision to storm Smith’s house was less justified
than the decision to activate SERT.9


       8
        There is some evidence that the troopers were concerned
about the possibility that Smith’s wife, who was not present that
evening, might be at risk. If the officers reasonably believed they
were dealing with a hostage situation, then our analysis would be
very different. However, there is insufficient evidence in the
record for us to conclude that the decision to enter Smith’s house
was made primarily out of a concern for Mrs. Smith’s safety.
Indeed, Trooper Marasco testified that, at some point that night, he
learned that Mrs. Smith was away.
       9
        The officers submit that the facts of Sharrar itself require
us to conclude that it would not have been clear to a reasonable
officer that the force used in this case was unreasonable. In
Sharrar, the police responded to a report from a woman who had
been assaulted by four men, including her estranged husband, who

                                16
        We therefore conclude that the District Court erred in
granting summary judgment to defendants Fetterolf and Hall
with respect to the decision to storm Smith’s house and shed.
Fetterolf and Hall were responsible for directing the other
members of the SERT team, and thus were responsible for the
decision to enter Smith’s residence and shed. In addition, we
conclude that the District Court erred in granting summary
judgment with respect to defendant Marcantino. Marcantino,
who served as the Troop Commander for Troop L, was camping
in Huntington, Pennsylvania on the night of the 10th. Fetterolf
testified that he contacted Marcantino and that Marcantino
approved of the plan to enter Smith’s residence. Marcantino
testified that he spoke to Fetterolf, but he did not indicate that he
approved the decision to enter the residence. He claimed that he
gave Fetterolf no directions. At this stage, however, we must
assume that a jury would credit Fetterolf’s version. If
Marcantino did, in fact, approve the decision to enter the
residence as well as the methods employed to do so, he is not
entitled to qualified immunity.

               III. The State-Created Danger Claim




beat her with a gun and threatened to murder her for allegedly
informing the FBI about the husband’s involvement in a local drug
ring. See 128 F.3d at 814–15. The police tracked the men to the
husband’s house, at which point they activated the SWAT team.
They instructed the men to exit the building, which they did
voluntarily. When they emerged, the police ordered them to lie
face down in the dirt, screamed obscenities, and threatened them
verbally and with weapons. In a subsequent § 1983 action, this
Court affirmed a grant of summary judgment for the defendants,
finding that the force used was not excessive. See id. at 820–22.
We think that there is one clear difference between this case and
Sharrar. In Sharrar, the actions of the officers were calculated
primarily to frighten the plaintiffs into submission and were likely
to lead to, at worst, minor physical injuries. In this case, however,
the troopers should have been aware that their actions were likely
to cause Smith serious, if not fatal, harm.

                                 17
        The Smiths also argue that defendants violated Smith’s
Fourteenth Amendment rights under the “state-created danger”
doctrine. In order to prevail on a state-created danger claim, a
plaintiff must prove

        (1) the harm ultimately caused was foreseeable
       and fairly direct; (2) the state actor acted in willful
       disregard for the safety of the plaintiff; (3) there
       existed some relationship between the state and the
       plaintiff; (4) the state actors used their authority to
       create an opportunity that otherwise would not
       have existed for the [harm] to occur.

Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995).
         Smith I held that the second element of this test is only
satisfied by conduct that “shocks the conscience.” See 318 F.3d
at 507. Although this requirement is but one element of the test,
it is often the most difficult for a plaintiff to show, and thus our
ultimate conclusion frequently turns on our determination of
whether given conduct “shocks the conscience.” For this reason,
we will focus our analysis on this element.
         As we noted in Smith I, the question whether a given
action “shocks the conscience” has an “elusive” quality to it.
See 318 F.3d at 509; cf. Herrera v. Collins, 506 U.S. 390, 428
(1993) (Scalia, J., dissenting) (questioning “the usefulness of
‘conscience shocking’ as a legal test”). As the Supreme Court
has observed:

       Whether the point of the conscience-shocking is
       reached when injuries are produced with
       culpability falling within the middle range,
       following from something more than negligence
       but “less than intentional conduct, such as
       recklessness or ‘gross negligence,’” 474 U.S. at
       334, n.3, is a matter for closer calls.

County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). Our
own decisions have not clarified this element of the test to any
great extent; indeed, in Smith I, we applied the somewhat
circular definition that conduct shocks the conscience if it

                                 18
exhibits “a level of gross negligence or arbitrariness that indeed
‘shocks the conscience.’” 318 F.3d at 508.
        Still, our decisions do give us some guidance as to how to
determine whether a given action “shocks the conscience.” As
we have previously noted, “[t]he exact degree of wrongfulness
necessary to reach the ‘conscience-shocking’ level depends upon
the circumstances of a particular case.” Miller v. City of
Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999). In particular,
we must determine whether the officer is confronted with a
“hyperpressurized environment” such as a high-speed chase, or,
in the alternative, has “the luxury of proceeding in a deliberate
fashion.” See Smith I, 318 F.3d at 509. In the latter case,
“deliberate indifference” may be sufficient to “shock the
conscience,” e.g., Lewis, 523 U.S. at 850; in the former, it is
usually necessary to show that the officer deliberately harmed
the victim, see id. at 852.
        In Ziccardi v. City of Philadelphia, 288 F.3d 57, 66 (3d
Cir. 2002), we determined that conscience-shocking behavior
requires proof that the “defendants consciously disregarded, not
just a substantial risk, but a great risk that serious harm would
result.” That opinion, however, did not deal with the question
whether this standard applied to cases raising state-created
danger claims.10



       10
            Ziccardi observed:

       In Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996),
       which preceded Lewis, we held that deliberate
       indifference sufficed in a case in which state actors
       placed the plaintiff in a dangerous situation and the
       plaintiff was harmed by a nongovernmental actor.
       The case before us is not a “state created danger”
       case and is not governed by Kneipp.

288 F.3d at 65 n.5. Ziccardi followed our decision in Smith I. In
Smith I, we concluded that Miller applied the “shocks the
conscience” element to all § 1983 cases raising substantive due
process claims, including state-created danger claims. We think
that the definition adopted in Ziccardi is useful in assessing such

                                 19
        The question we must address, of course, is not simply
whether the behavior of the troopers “shocks the conscience”
under the applicable standard, but whether a reasonable officer
would have realized as much. In this regard, “the salient
question” we must ask is whether the law, as it existed in 1999,
gave the troopers “fair warning” that their actions were
unconstitutional. See Hope v. Pelzer, 536 U.S. 730, 741 (2002).
It is not necessary for the plaintiffs to identify a case presenting
analogous factual circumstances, but they must show that the
contours of the right at issue were “‘sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.’” Id. at 739 (citation omitted).
        While the jurisprudence does not yield a clear definition
of “conscience-shocking” (applicable to situations such as this),
we agree with the District Court that the Smiths have not shown
that a reasonable officer in the position of these troopers would
have understood his conduct to be “conscience-shocking.” 11 We
therefore conclude that the troopers are entitled to qualified
immunity with respect to the state-created danger claim.
        The decisions cited by the Smiths are not to the contrary.
For instance, in Rivas v. City of Passaic, 365 F.3d 181 (3d Cir.
2004), we considered a situation in which two paramedics
responded to a call from a man who was apparently having a
seizure. According to the paramedics, the man became
belligerent and attacked them, and they called for police
assistance. Upon arriving, the police restrained the man, and in
so doing caused his death.
        In a subsequent § 1983 action, we held that the
paramedics were not entitled to qualified immunity on a state-
created danger claim. We relied on the fact that there were
disputed issues of material fact that needed to be resolved by a


claims.
       11
         As the Supreme Court has acknowledged, the question
whether conduct which is neither intentionally harmful nor merely
negligent “shocks the conscience” is frequently “a matter for closer
calls.” Lewis, 523 U.S. at 849. Yet the qualified immunity
jurisprudence teaches us that “closer calls” are usually to be
resolved in favor of the officer.

                                 20
jury. Most importantly, we noted that a reasonable jury could
conclude that the paramedics had falsely told the police that the
man had attacked them and further failed to communicate to the
police that he had suffered from a seizure and therefore should
not be restrained. See 396 F.3d at 196. Such behavior, we
concluded, shocked the conscience, and a reasonable paramedic
would have recognized as much.
        The facts of this case are not analogous. The deception of
the paramedics in Rivas led the police to restrain the seizure
victim in that case, even though the paramedics knew that it was
inappropriate to do so. We concluded that a reasonable
paramedic would recognize that such behavior is not only
inappropriate, but conscious-shocking. In this case, the
wrongfulness of the troopers’ conduct was not nearly as clear.
While there is sufficient evidence in the record for a reasonable
jury to conclude that the troopers were negligent, we simply
cannot conclude that a reasonable officer in their position would
have recognized that his conduct shocked the conscience. For
this reason, the troopers are entitled to qualified immunity with
respect to this claim.
        This conclusion applies to all of the actions taken by the
troopers that could arguably support a state-created danger claim,
including the formation of the initial perimeter around Smith’s
house, the activation of SERT, and the subsequent search in the
woods.12 None of these decisions appears to have “consciously
disregarded, not just a substantial risk, but a great risk that
serious harm would result.” Ziccardi, 288 F.3d at 66. There is
evidence from which a reasonable jury could conclude that the




       12
         Since we conclude that the Smiths have a viable Fourth
Amendment claim with regard to the entrance into the house and
shed, we need not address that claim as a separate Fourteenth
Amendment violation. See United States v. Lanier, 520 U.S. 259,
272 (1997) (“[I]f a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendment,
the claim must be analyzed under the standard appropriate to that
specific provision, not under the rubric of substantive due
process.”).

                               21
troopers’ efforts to locate Smith in the woods were inadequate.13
That said, we see nothing in the record that would permit us to
conclude that a reasonable officer would have known that the
conduct of the search was “conscience shocking.”
       We recognize that, in Rivas, we held that

       as of November 1998, our case law had established
       the general proposition that state actors may not
       abandon a private citizen in a dangerous situation,
       provided that the state actors are aware of the risk
       of serious harm and are partly responsible for
       creating the opportunity for that harm to happen.

365 F.3d at 200. Yet we think a reasonable officer could
recognize a difference between abandoning a private citizen
with whom he had come in contact and failing to prolong a two-
hour search for a private citizen whom he has been unable to
locate, see supra n.13. At this stage, such a difference is
sufficient for the officers to be entitled to qualified immunity.
       For the foregoing reasons, we will affirm the District



       13
           The deposition testimony of Smith’s neighbor, Christopher
Zwicky, supports the view that the search was inadequate. Zwicky
approached the command center upon hearing a helicopter
overhead and, after learning what had happened the previous
evening, offered to help with the search. The police refused to let
Zwicky enter the woods but did allow him to go up in the
helicopter to help direct the search. In addition, according to
Zwicky, the police also reviewed an aerial photograph of the
surrounding area with him. Zwicky testified that he told the police
that there were two areas where Smith was likely to hide: a deer
blind and what he described as a “super thick sticker patch.”
According to Zwicky, the police located the deer blind, but made
little or no effort to find the second location. Indeed, according to
his testimony, “[the police] bagged it and went home” after finding
the deer blind. Zwicky further testified that he remained in the
command post for another hour, but “they had pretty much decided
they were going to quit for the day then. As the District Court
found, the search of the woods lasted about two hours.

                                 22
Court’s grant of summary judgment on the state-created danger
claim. In doing do, we acknowledge that the panel in Smith I
held that the Smiths had “produced sufficient evidence to allow a
reasonable jury to conclude that the officers’ conduct both with
regard to activating SERT and with regard to searching of the
woods shocked the conscience.” 318 F.3d at 509. We think,
however, that the question whether a reasonable officer would
have had “fair warning” at the time that his conduct shocked the
conscience is sufficiently different to warrant the result we reach.
The difference may be subtle, but the shocks the conscience
standard is somewhat vague, and we are satisfied that fair
warning was absent here.
        Because we conclude that the Smiths cannot show that a
reasonable officer would have recognized that his conduct was
“conscience-shocking,” we need not address the other elements
of the state-created danger test. We will therefore affirm the
decision of the District Court that all defendants were entitled to
qualified immunity with respect to the state-created danger
claim.

               IV. The Unreasonable Search Claim

        Finally, we must address the unreasonable search claim
against Troopers Marasco and Scianna. In its first opinion, the
District Court held that Marasco’s and Scianna’s entry into
Smith’s backyard was reasonable, in light of the fact that they
were responding to a complaint concerning light shining from
Smith’s property. On appeal, we rejected this analysis, finding
that the troopers had entered Smith’s “curtilage” and that
disputes of fact existed which could impact whether the entry
was reasonable.14 We repudiated the view “that officers may
proceed to the back of a home when they do not receive an
answer at the front door any time they have a legitimate purpose
for approaching the house in the first place,” Smith I, 318 F.3d at
519-20.



       14
        A person’s curtilage is the area immediately adjacent to his
home in which he has a legitimate expectation of privacy. See
United States v. Dunn, 480 U.S. 294, 300 (1987).

                                23
       More specifically, we observed:

       In addition, Marasco had been to Smith’s residence
       in the past and had been in Smith’s backyard once
       or twice before. A jury could conclude that he
       therefore knew that the Smith residence did not
       have a back entrance as seems to be the case. If
       Marasco had such knowledge, then this is not a
       case where the officers necessarily acted
       reasonably in proceeding to the back of the house
       to find another entrance after receiving no answer
       at the front door. . . . It also appears that here the
       officers entered the backyard at least twice,
       spending a more significant amount of time
       looking around Smith’s property than did the
       officers in Raines and Anderson in looking around
       the properties involved there, and that the officers
       here did so despite having been instructed to leave
       if they did not receive an answer to their initial
       attempts to contact Smith. Furthermore, the district
       court did not address the fact that Marasco testified
       about entering Smith’s garage after receiving no
       answer. The record indicates that the garage was
       in fact a part of the structure of the house itself.

       In the circumstances, there remain questions of fact
       as to whether the officers’ intrusion into the
       curtilage was reasonable in light of their asserted
       purpose in making their entry into Smith’s property
       which was not to make a search.15

318 F.3d at 521.

      On remand, the District Court again granted summary
judgment for Marasco and Scianna. The Court concluded that



       15
        We also held that inquiries into the reasonableness of such
searches must be conducted on a case-by-case basis.


                                24
certain facts rendered the search inherently reasonable, namely
that the officers “knew there to be a back porch that Smith
sometimes sat on”; that “there were lights on in the home, the
garage door was open and there were vehicles in the driveway”;
and that it “was necessary to locate Smith in order to turn off the
lights that were shining on Shafers’ property late that night.” See
2004 U.S. Dist. LEXIS 5613 at *15-*16.16
        We agree with the District Court that it was reasonable for
the officers initially to enter the backyard in order to ascertain
whether Smith was sitting on his fenced-in back porch.17 As we
observed in Smith I:

       Where officers are pursuing a lawful objective,
       unconnected to any search for the fruits and
       instrumentalities of criminal activity, their entry
       into the curtilage after not receiving an answer at
       the front door might be reasonable as entry into the
       curtilage may provide the only practicable way of
       attempting to contact the resident . . . where the
       front door was inaccessible. Similarly, officers
       reasonably may believe, based on the facts
       available to them, that the person they seek to
       interview may be located elsewhere on property
       within the curtilage . . . and, [in such] cases, an
       officer’s brief entry into the curtilage to test this
       belief might be justified.

318 F.3d at 520. Given that the troopers believed Smith to be
home but did not receive a response when they knocked on his
door, as well as the fact that they knew he occasionally sat in the
fenced-in porch, it was not unreasonable for them to enter the


       16
          The District Court also found that the troopers had not, in
fact, violated Smith’s curtilage. 2004 U.S. Dist LEXIS 5613 at *14
n.1. However, we concluded in Smith I that they had done so
(based on the initial findings by the District Court), see 318 F.3d at
519, and we are bound by this conclusion.
       17
         The fact that the porch apparently did not have a door
leading to the backyard is irrelevant to this analysis.

                                 25
backyard for the limited purpose of ascertaining whether he was
on the porch.
        However, as we noted in Smith I, the troopers apparently
entered Smith’s backyard on two separate occasions. See id. At
his deposition, Trooper Marasco testified that, after being unable
to locate Smith on the porch, he returned to his car and contacted
Corporal Rodriguez. At that point, according to his deposition
testimony, he and Trooper Scianna returned to the backyard and
waited there while the PCO attempted to reach Smith. In fact,
Marasco testified that he and Scianna were simply “buying time”
while waiting for the PCO to contact Smith. It was at this point
that Trooper Marasco observed the red dot on Trooper Scianna.
        We cannot conclude, based on the record before us, that
this second entrance into Smith’s backyard was objectively
reasonable. Indeed this result is essentially compelled by Smith
I, as we have explained it. The troopers were justified in
entering the curtilage for the purpose of determining whether he
was sitting on his back porch; once they determined that he was
not, their justification for remaining in his yard ended. As we
observed in Smith I, when officers reasonably believe that “the
person they seek to interview may be located elsewhere on
property within the curtilage,” then a “brief entry into the
curtilage to test this belief might be justified.” Id. While the
troopers’ first entrance into Smith’s backyard was consistent with
this principle, the second was not. For this reason, it was error
for the District Court to conclude that Marasco and Scianna were
entitled to summary judgment on the unreasonable search
claim.18



       18
         In Smith I, we held that the District Court erred in granting
defendants’ summary judgment on the unreasonable search claim
and remanded so that the District Court could “address the specific
conduct of the defendants in determining whether they are entitled
to qualified immunity on these claims.” See 318 F.3d at 521 n.13.
However, the District Court did not focus on the qualified
immunity issue. Judge Roth would hold that the second trip around
the house was not an unreasonable search, relying on United States
v. Rohrig, 98 F.3d 1506 (6th Cir. 2003). Rohrig depends upon the
existence of exigent circumstances which were found in that case

                                 26
                           V. Conclusion

       We will affirm the District Court’s grant of summary
judgment with respect to defendants Doman, Krawczel,
Carbonell, Weaver, Wenger, T. Rodriguez, and M. Rodriguez.
We will affirm the District Court’s grant of summary judgment
to defendants Marasco and Scianna on all claims with the
exception of the unreasonable search claim. We will affirm the
grant of summary judgment with respect to defendants Fetterolf,
Hall, and Marcantino, with the exception of the excessive force
claim pertaining to the decision to storm Smith’s house and shed.
Concomitantly, we will reinstate the state-law claims dismissed
by the District Court.19




because of the need to abate loud music late at night that was
disturbing the neighborhood. We do not believe that the bright
lights that shone from Smith’s house onto Shafer’s property are
comparable.
       19
         The District Court, having granted summary judgment for
the defendants on all the federal claims, dismissed the pendent state
claims. On this second remand, the District Court should examine
the state claims and proceed with those that are not effectively
disposed of by this opinion.

                                 27
ROTH, Circuit Judge, concurring in part and dissenting in part:

        I agree with the majority’s conclusions in Parts II and III
of its opinion. I respectfully dissent, however, from the
conclusion in Part IV that Troopers Marasco and Scianna’s
second trip by the back of the house, while they were trying to
contact Smith by telephone, constituted an unreasonable search –
or that a reasonable officer would understand that what he was
doing violated the right against unreasonable searches. In view
of the facts, acknowledged by the majority – that the troopers
knew there was a back porch that Smith sometimes sat on, that
there lights on in the house, that the garage door was open, that
there were vehicles in the driveway, and that they wanted to
locate Smith, who they believed to be in the house, in order to
have him turn off the lights shining on Shafers’ property – I
conclude that the second trip around the house, while the
telephone contact was being attempted, was not an unreasonable
search. Smith had created a public nuisance that was affecting
his neighbor, and the steps taken by Marasco and Scianna were
reasonable efforts to abate it. See, e.g., United States v. Rohig,
98 F.3d 1506, 1518-25 (6 th Cir. 2003) (holding that officers’
warrantless entry to locate and abate loud music late at night was
justified by exigent circumstances).20 We should not permit the
tragic consequences, caused by the later unreasonable assault on
the house, to color our consideration of actions that, if the later
tragedy had not ensued, would surely not be the cause of any
claim of constitutional violation.
        For the above reasons, I would affirm the grant of
summary judgment to Troopers Marasco and Scianna on the
claim of unreasonable search.



       20
           In Smith I, we held that we expressed no opinion as to
whether we would have found the circumstances presented Rohrig
to be exigent. 318 F.3d at 521, n. 11. I conclude that bright lights
directed at a neighbor’s property late at night, in view of the history
of friction between the neighbors, was a circumstance that required
a reasonable effort to get the lights turned off if Smith was home
and that the effort here was reasonable.

                                  28
