                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-20-2008

Kubicki v. Whitemarsh
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4905




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Recommended Citation
"Kubicki v. Whitemarsh" (2008). 2008 Decisions. Paper 1407.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1407


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                                                        NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                        ____________

                             No. 06-4905
                            ____________

 JOSEPH T. KUBICKI, ON HIS OWN BEHALF AND AS PARENT AND
NATURAL GUARDIAN ON BEHALF OF THE MINOR, JOSEPH KUBICKI;
                 JOSEPH KUBICKI A MINOR,

                                                  Appellants,


                                   v.

  WHITEMARSH TOWNSHIP; JOHN DOE# 1-3 POLICE OFFICERS,

                                                  Appellees.

                            ____________

               On Appeal from United States District Court
                 for the District of Eastern Pennsylvania
                         (D.C. No. 04-cv-05780)
     District Court Magistrate Judge: Honorable Linda K. Caracappa
                              ____________

              Submitted Under Third Circuit LAR 34.1(a)
                           March 6, 2008

      Before: BARRY, JORDAN and HARDIMAN, Circuit Judges.

                        (Filed: March 20, 2008)
                             ____________

                     OPINION OF THE COURT
                          ____________
HARDIMAN, Circuit Judge.

       Joseph T. Kubicki (Kubicki) and his son, Joseph J. Kubicki, appeal the District

Court’s grant of summary judgment in favor of three Whitemarsh Township police

officers. We will affirm in part, vacate in part, and remand.

                                             I.

       Because we write exclusively for the parties, who are familiar with the facts and

proceedings below, we will not revisit them here.

       We will affirm the District Court’s grant of summary judgment only if there are no

genuine issues of material fact and the officers are entitled to judgment as a matter of law.

See F ED. R. C IV. P. 56(c); Feesers, Inc. v. Michael Foods, Inc., 498 F.3d 206, 212 (3d Cir.

2007). In reviewing the record below, we construe the facts and draw all reasonable

inferences in the Kubickis’ favor. Michael Foods, 498 F.3d at 212. The substantive law

of exigent circumstances and excessive force determines which facts are material.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

       Kubicki and his son argue that the officers violated their Fourth Amendment rights

by entering their home without a warrant. A warrantless home entry is presumptively

unconstitutional, but “exigent circumstances” can excuse the warrant requirement. See

Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984). Where police officers assert exigency,

they “reasonably must believe that someone is in imminent danger.” Parkhurst, 77 F.3d

at 711 (emphasis in original).



                                             2
       Our review of the record reveals disputed facts regarding the reasonableness of the

officers’ belief that someone at 402 Roberts Avenue was in imminent danger. The

Kubickis testified that it was quiet in their upstairs apartment, while the officers reported

that they heard “an agitated male’s voice coming from the second floor apartment.” In

addition, the Kubickis testified that they heard nothing downstairs (where they can

usually “hear real good”), while the officers asserted that a “loud disturbance” occurred

that night in the first floor apartment. Finally, the Kubickis’ testimony that they did not

hear the police yelling until after they entered the otherwise quiet apartment contradicts

the officers’ testimony that they repeatedly knocked and announced before entering.

Because these disputed facts are material to determining whether the officers reasonably

believed that exigent circumstances existed, we must reverse the District Court’s grant of

summary judgment on this count. See Couden v. Duffy, 446 F.3d 483, 493 (3d Cir. 2006).

                                              B.

       Kubicki next argues that the officers employed excessive force. Like the exigent

circumstances inquiry, the excessive force inquiry asks “whether the officers’ actions

[were] ‘objectively reasonable’ in light of the facts and circumstances confronting them.”

Graham v. Connor, 490 U.S. 386, 397 (1989). In assessing the reasonableness of the

officers’ actions, we account for the fact that they must make “split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the




                                              3
amount of force that is necessary.” Couden, 446 F.3d at 497 (quoting Graham, 490 U.S.

at 397).

       Accepting Kubicki’s version of the facts, we find the officers’ belief that Kubicki

posed a threat to them was objectively reasonable. Kubicki and his son testified that

when the officers instructed Kubicki to put his hands behind his head, he put them behind

his back instead. Based upon this disobedience, a reasonable officer would be justified in

fearing that Kubicki was reaching for a weapon. We find the force employed to

neutralize this threat reasonable and affirm the District Court’s grant of summary

judgment on this claim. Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994).1

       We have considered all of the contentions raised by the parties and conclude that

no further discussion is necessary. The judgment of the District Court will be affirmed in

part, vacated in part, and remanded for further proceedings consistent with this opinion.




       1
         In light of our decision that material issues of fact are in dispute regarding the
reasonableness of the warrantless entry, we do not reach the question of whether a
constitutional violation occurred for purposes of qualified immunity.

                                              4
