                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-22-1995

Baker v Monroe Township
Precedential or Non-Precedential:

Docket 94-5069




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                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                        _______________

                          No. 94-5069
                        _______________

           INEZ BAKER, individually and as Guardian
          ad Litem of Tiffany Baker; TIFFANY BAKER;
          COREY BAKER; and JACQUINE ANDERSON (suing
              in their own right if of majority),

                               Appellants

                               v.

          MONROE TOWNSHIP; OFFICER ROBERT ARMSTRONG
           (individually and officially); JOHN DOES
             1-8 (officers of the Monroe Township
            Police Department, individually and in
           their official capacity); JOHN DOES 9-12
          (officers of the U.S.D.E.A., individually
             and in their official capacity); JOHN
             DOES 13-16 (law enforcement officers
          acting individually and in their official
         capacity); all jointly and severally liable
            in both individual as well as official
                          capacities,

                                Appellees
       _________________________________________________

        ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW JERSEY
                  (D.C. Civil No. 92-cv-03203)
       _________________________________________________

                   Argued:   August 12, 1994

         Before:   BECKER, ALITO, Circuit Judges, and
                       JOHN R. GIBSON, Senior Circuit Judge*

                    (Filed March 22, 1995)


*
    The Honorable John R. Gibson, United States
              Senior Circuit Judge for the Eighth
              Circuit Court of Appeals, sitting
              by designation.
                           JEFFREY A. LIBERT, ESQUIRE (ARGUED)
                           ANGELO J. FALCIANI, ESQUIRE
                           29 South Broad Street
                           Woodbury, NJ 08096

                           Attorneys for Appellants


                           SUSANNA J. MORRIS, ESQUIRE (ARGUED)
                           Budd, Larner, Bross, Rosenbaum,
                              Greenberg & Sade
                           200 Lake Drive East
                           Woodland Falls Corporate Park
                           Suite 100
                           Cherry Hill, NJ 08002

                           Attorney for Appellees

                    _____________________________

                        OPINION OF THE COURT
                    _____________________________


JOHN R. GIBSON, Senior Circuit Judge:

           Inez Baker, her two children, Corey and Tiffany Baker,

and her foster daughter, Jacquine Anderson, appeal from a summary

judgment against them in their 42 U.S.C. § 1983 (1988) claim

against   Monroe   Township,   Robert   Armstrong,   a   Monroe    Township

police officer, and numerous John Doe defendants who were police

officers or federal Drug Enforcement Agency agents.               The Baker

family alleges illegal search and seizure of their persons and

property and use of excessive force, which occurred as the family

group approached the home of Mrs. Baker's son, Clementh Griffin,

just as police were commencing a drug raid there.           The district

court entered judgment for Monroe Township and for Armstrong,
holding that the Bakers made no showing that either of these

defendants    was    legally    responsible    for     any   violation    of   the

Bakers' rights that may have occurred.               The district court also

refused to allow the Bakers to amend their complaint to correct

the names of the John Doe defendants, and refused to reconsider

the summary judgment ruling based on an affidavit that was filed

out of time under the local rules.            We reverse and remand on the

issue of whether the Bakers showed evidence that could render

Armstrong    personally        liable   for   the     alleged     civil      rights

violations and also remand for consideration of whether Tiffany

Baker should be permitted to amend to correct fictitious names.

            Around 8:30 on the evening of Friday, June 1, 1990,

Mrs. Baker, Corey, Tiffany, and Jacquine were approaching the

home of Clementh Griffin, Mrs. Baker's son, and his girlfriend,

Cheryl Woods, who had invited them to dinner.                It was still light

outside,    though   dusk.       At   the   same    time,    police   from   three

jurisdictions were launching a drug raid on the same apartment,

authorized by a "no-knock" warrant.1               As the Bakers walked up to

     1
      The warrant consisted of a form authorizing search of:
"the (x) premises (x) person (x) vehicle described below"
(emphasis added).   Though x's were filled in each of the three
blanks, the space for the promised description contained only an
identification of the premises to be searched and mentioned
nothing about any persons. Although the dissent, infra at 8-9,
considers this a warrant for search of specified persons, the
only common-sense interpretation of the document is that no one
ever bothered to complete it to include specified persons as well
as premises. This flawed document does not demonstrate that the
magistrate determined search of any particular person to be
justified.

     The "description below" referred only to an apartment in a
three story wood frame residence.     There is no description,
the door, they were suddenly surprised by officers running past

them with guns in their hands, shouting, "Get down."               Some of the

officers (including Armstrong) ran directly into the house, but

others   forced   the   Bakers   down     to    the    ground.     The   Bakers

testified that the officers pointed guns at them, handcuffed them

and left some of them handcuffed for as much as twenty-five

minutes,   searched     Corey    Baker,        and    emptied    Mrs.    Baker's

pocketbook onto the ground outside the apartment.                   After the

Bakers identified themselves as relatives of Clementh Griffin,

the police released them.




general or specific, of any person as in the warrant we
considered in United States v. Ferrone, 438 F.2d 381, 389 (3d
Cir.), cert. denied, 402 U.S. 1008 (1971). Nor did the language
in the description refer to a place and any or all "persons found
therein" as did the warrants before the courts in State v. Sims,
382 A.2d 638, 642 (N.J. 1978), and State v. DeSimone, 288 A.2d
849, 850 (N.J. 1972).    The Fourth Amendment requires that the
warrant particularly describe the place to be searched and the
persons to be seized. The face of the warrant demonstrates its
failure to meet the requirement of the Fourth Amendment.      The
dissent engages in a lengthy interpretation of the warrant to
find authorization for a search of persons found on the premises.
The dissent then proceeds to analyze Sims and DeSimone, cases
which specifically referred to persons on the premises, to
include   a  question   of  probable   cause.     This  elaborate
interpretation and analysis and the length to which the dissent
goes in developing it simply point up the inadequacy of the
warrant to describe any person generally or specifically. Having
said as much, we need not speculate further as to whether the
dissent's interpretation would cover not only persons found on
the premises, but those outside the premises and on the sidewalk
and steps leading into it. It is also evident that the dissent
makes its interpretation and bases its analysis on the facts
taken in the light most favorable to the party moving for summary
judgment rather than the non-movant, contrary to the constraints
we have referred to that guide us in reviewing an order granting
summary judgment. Infra at 7.
             The Bakers brought this action under 42 U.S.C. § 1983,

alleging, inter alia, violations of their Fourth Amendment rights

by illegal seizure and use of excessive force.                      They specified

only Robert Armstrong and Monroe Township as defendants, using

fictitious     names       for     sixteen     other    defendants       whom    they

identified as assisting in the raid.

             Armstrong       and    Monroe     Township     moved    for     summary

judgment.      The district court held that, assuming the Bakers'

Fourth Amendment rights were violated, the Bakers made no showing

that    Armstrong      either      committed    the     violations     personally,

directed someone else to commit them, or had knowledge of the

violations and acquiesced in them.                Instead, the court stated,

the evidence indicated that Armstrong was inside the apartment

while the alleged violations took place outside the apartment.

Moreover,     there    was    no    evidence    that    Armstrong     should     have

trained the other officers to behave differently, for though he

was    in   charge    of   this    particular     raid,    the   other     men    were

employees     of     the   federal     Drug    Enforcement       Agency    and    the

Gloucester     County      Prosecutor's       office,     whom   Armstrong       could

expect to be adequately trained.                Since Armstrong was the only

Monroe Township official involved in the raid, the district court

found no causal link between anything the Township did or did not

do and the harm alleged.

             The Bakers then sought leave to amend their complaint

to correct the fictitious names of several of the officers they

allege participated directly in the rough treatment.                      The Bakers

brought this suit on June 1, 1992, the last day before expiration
of the two-year statute of limitations.            Despite having received

in March 1993 the names of the officers involved in the raid, the

plaintiffs did not move to amend their complaint to correct the

fictitious    names    until   after    the   district     court   had     entered

summary judgment against them on November 5, 1993.                       At that

point, the district court ruled that the Bakers had not made the

requisite showing of diligence under New Jersey law, see Farrell

v. Votator Div. of Chemetron Corp., 299 A.2d 394 (N.J. 1973), and

that state law would not permit the relation-back of the Bakers'

amended complaint.      Their claims would be time-barred, and so the

district     court    denied   the     Bakers'    motion    to     amend    their

complaint.

             The Bakers moved for reconsideration of the summary

judgment   against     them,   arguing    that   they    asserted    state    law

claims that should not have been dismissed and that the court

erred in its ruling on the section 1983 claims.                     About three

weeks after their motion for reconsideration, they produced for

the first time the affidavit of Clementh Griffin, containing

evidence which was relevant to the elements the district court

earlier held were not established.               The court ruled that the

Bakers filed their motion for reconsideration too late under the

local rules, General Rules for the District of New Jersey 12I,

and therefore denied the motion, except that it remanded the

state law claims to the state courts.

             On appeal, the Bakers argue that the district court

erred in entering summary judgment against them and in denying
their motions for reconsideration and to amend their complaint to

correct the fictitious names.


                                I.

             The district court did not abuse its discretion in

holding that the Bakers were not diligent in seeking to correct

the fictitious names in their complaint.      However, the Bakers

argue that Tiffany and Corey Baker were minors at the time of the

events in question and that the statute of limitations has not

expired as to them.2   Though the Bakers' brief does not supply us

with Corey Baker's birth date, the defendants inform us that

Corey Baker reached majority in January 1991, some six months

after the events in question, and that the statute of limitations

has expired as to him.   Once the defendants showed the applicable

limitation period had elapsed, Corey Baker had the burden to

prove the statute was tolled.   Burlington County Country Club v.

Midlantic Nat'l Bank South, 538 A.2d 441, 443 (N.J. Sup. Ct.

1987).   This he has failed to do.       On the other hand, the

defendants concede that the statute "may" not have expired for

Tiffany Baker, who was born on December 1, 1974.     We therefore

remand for the district court to determine whether Tiffany Baker

should be granted leave under Fed. R. Civ. P. 15 to amend her

complaint.




     2
      The evidence also indicates Jacquine was a minor at the
time of the events, but the plaintiffs do not mention this.
                                             II.

             We will not disturb the district court's refusal to

consider the Clementh Griffin affidavit.                        The Bakers argue that

the district court miscalculated the number of business days

between entry of its judgment and the motion to reconsider.                                   Even

if   this    is    true,    the        motion    to     reconsider           only    reiterated

arguments already before the court (except for the motion to

remand state law claims, which the court granted).                                        The only

filing    that     would    actually         help     the    Bakers      was        the    Griffin

affidavit,       which    was     in    itself      essentially          a    new    motion     to

reconsider and which was filed well out of time.                                   The district

court's ruling was warranted under the local rules.


                                             III.

             The    merits       of     this     case       involve      Fourth          Amendment

questions of what police may lawfully do with persons who happen

to find themselves in the middle of a drug raid, and questions of

responsibility           under         section        1983     of        supervisors            and

municipalities for others' conduct.

             We    review        the     district       court's       entry         of     summary

judgment     de     novo,        viewing     the      evidence      in       the    light      most

favorable to the nonmovant and giving the nonmovant the benefit

of all reasonable inferences.                    Spain v. Gallegos, 26 F.3d 439,
446 (3d Cir. 1994).              When the movant has produced evidence in

support     of    his    motion,       the   nonmovants        cannot         rest       on   their

pleadings, but must come forward with enough evidence to create a

material issue of fact.            See id.
              In order to render Armstrong personally liable under

section      1983,   the    Bakers      must   show   that    he   participated   in

violating their rights, or that he directed others to violate

them, or that he, as the person in charge of the raid, had

knowledge of and acquiesced in his subordinates' violations.3

See Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir.

1990); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

              A municipality can only be liable under section 1983

when   the    municipality       itself    causes     the    violation.    City   of

Canton v. Harris, 489 U.S. 378, 385 (1989).                   The Bakers must show

that a policymaker for the Township authorized policies that led

to the violations or permitted practices that were so permanent

and well settled as to establish acquiescence.                     Simmons v. City

of   Philadelphia,         947   F.2d    1042,   1064   (3d    Cir.   1991),   cert.

denied, 112 S. Ct. 1671 (1992); Andrews, 895 F.2d at 1480.



              We reject the Bakers' argument that Monroe               Township is

liable for the actions of police from other jurisdictions solely

by virtue of a failure to train those police.                   It is unreasonable

to expect Monroe Township to retrain officers from the County

prosecutor's office and the D.E.A., and the Bakers have produced




       3
      It is also possible to establish section 1983 supervisory
liability by showing a supervisor tolerated past or ongoing
misbehavior, see e.g. Stoneking v. Bradford Area Sch. Dist., 882
F.2d 720, 724-25 (3d Cir. 1989), cert. denied, 493 U.S. 1044
(1990); since the facts of this case do not implicate such a
theory, we need not belabor it.
no evidence showing that Monroe Township had reason to think such

a thing necessary.

            The actions the Bakers complain of are best analyzed in

four aspects ranging from the least objectionable to the most.


                                          A.

            First, we consider Armstrong's order to the Bakers to

"Get down" as Armstrong ran into the Griffin-Woods apartment.

Armstrong freely admits that he shouted this order when he saw

the   Bakers    and   that   the    other      officers    "followed      suit," all

shouting the same command.            Armstrong also specifically alluded

to this as the customary way of doing things:                    "Just from working

over the years, I know that the people I'm passing are going to

be secured, again, for their safety as well as our safety."

However, as Armstrong described the practice, it does not violate

the Fourth Amendment.         Armstrong testified that it was necessary

to burst into the house without warning in order to prevent

people in the house from destroying evidence.                       He had a "no-

knock" warrant for this very reason.                    The Bakers were at the

doorstep as he ran in.              He feared the raid could result in

violence, and considered it necessary to get the Bakers down on

the   ground,     partly     to     protect      them     from    stray    gunshots.

Armstrong      also   said   that    at   the    instant    he     encountered   the

Bakers, he did not know whether the Bakers were coming to or

going from the house, nor did he know whether they were the very

people whose house he had a warrant to search.                    There is no doubt

but that the Bakers had some relationship to the apartment since
Corey   was     on     the    steps   and    the     others    were      right       behind.

Moreover,       Armstrong      testified      that     the    presence        of   citizens

standing in the middle of the raid could prevent the police

officers from defending themselves, since they would not be able

to return fire in the midst of a crowd.

              Under these circumstances, it was entirely reasonable

to order the Bakers to "get down," until the situation was under

control.        Armstrong's      order      is   justified     under      two      lines    of

Supreme Court cases.             Under Michigan v. Summers, 452 U.S. 692

(1981), during execution of a search warrant, police can detain

the occupant of the house they have a warrant to search.                             This is

reasonable       to    protect    the       police,     to    prevent         flight,      and

generally to avoid dangerous confusion:                       "The risk of harm to

both the police and the occupants is minimized if the officers

routinely exercise unquestioned command of the situation."                                 Id.

at 702-03.       The dangerousness of chaos is quite pronounced in a

drug raid, where the occupants are likely to be armed, where the

police are certainly armed, and the nature of the suspected drug

operation would involve a great deal of coming and going by drug

customers.       In his application for the warrant, Armstrong swore

that a concerned citizen advised that "numerous young adults and

children" were going to the apartment and he had confirmed this

personally      by    surveillance.          Armstrong       said   he    did      not   know

whether    or    not    the    Bakers    were    the    occupants        of    the    house.

Although Summers itself only pertains to a resident of the house
under warrant, it follows that the police may stop people coming

to or going from the house if police need to ascertain whether
they live there.        See United States v. Moreno, 891 F.2d 247, 249

(9th Cir. 1989) (citing both Summers and Terry v. Ohio, 392 U.S.

1 (1968)).

              The order to "get down" is also permissible under the

line of cases following Terry v. Ohio, 392 U.S. 1 (1968), which

permit an investigatory stop, not rising to the level of arrest,

in situations presenting less than probable cause.                                 Under the

Terry    cases,     the      reasonableness           of    the        intrusion       is   the

touchstone,       balancing    the    need       of    law       enforcement       officials

against the burden on the affected citizens and considering the

relation of the policeman's actions to his reason for stopping

the suspect.       See United States v. Sharpe, 470 U.S. 675, 682-83

(1985); see generally United States v. Chaidez, 919 F.2d 1193,

1197-98 (7th Cir.), cert. denied, 501 U.S. 1234 (1991); United

States v. Trullo, 809 F.2d 108, 111 (1st Cir.), cert. denied, 482

U.S.    916   (1987).        Here,    the    need      to    ascertain       the       Bakers'

identity, the need to protect them from stray gunfire, and the

need to clear the area of approach for the police to be able to

operate efficiently all made it reasonable to get the Bakers down

on the ground for a few crucial minutes.                           Armstrong's initial

order to "get down" and the other officers' actions in pushing

the    Bakers    down   to    the    ground      did       not    constitute       a    Fourth

Amendment       violation,    and    therefore         did       not    render     Armstrong

himself or Monroe Township liable.


                                            B.
            Second, we consider the closer question of whether the

police detained the Bakers for an unconstitutionally long time.

As with the order to "get down," Armstrong admits that he was

aware    the    Bakers     were     being       detained       until   they        could    be

identified      and   that    this        was    consistent       with       his    regular

practices.       Under Sharpe, 470 U.S. at 685-86, there is no per se

rule about the length of time a suspect may be detained before

the detention becomes a full-scale arrest.                        Instead, the court

must examine the reasonableness of the detention, particularly

whether the police were diligent in accomplishing the purpose of

the stop as rapidly as possible.                      Here, the Bakers state they

were held a total of about twenty-five minutes, about ten minutes

outside and as long as fifteen minutes inside.                           Significantly,

Armstrong did not "holler" out the door for the others to bring

the    Bakers    inside    until    after       the    house    had    been    "secured,"

meaning    that    police    had    located       and    gained    control         over the

people in the house.          Armstrong testified that this took only a

"minute or two," but there is obviously a margin for error here;

it would be absurd to expect police in peril for their lives to

time their motions with a stop-watch.                   Given the uncertainty over

what    would     happen    until    the    house       was     secured,      it     is    not

surprising that the police could not begin sorting out who was

who for the first ten minutes.                  After they were brought in the

apartment, Tiffany Baker, Inez Baker and Armstrong all estimated

that fifteen minutes elapsed before the Bakers left.                               At least

part of that time was taken up with Armstrong delivering an

apology    and     explanation       to     Mrs.       Baker    for    the     detention.
(Armstrong said:        "It was probably more time explaining what went

on in that fifteen minutes of detaining the Baker family than

anything else.")          Under Sharpe when "police are acting in a

swiftly developing situation . . . court[s] should not indulge in

unrealistic second-guessing."             470 U.S. at 686.         We cannot say

that a detention of fifteen minutes time to identify and release

a     fairly    large    group     of    people     during   a    drug    raid    is

unreasonable.       Therefore, Armstrong's admission that the Bakers

were detained fifteen minutes inside and some amount of time

outside, taken alone, does not render him or Monroe Township

liable.


                                          C.

               Third, we consider the use of guns and handcuffs.                  The

district court concluded that the Bakers' depositions do not

indicate Armstrong personally used guns or handcuffs, nor that he

directed anyone else to do so.             This conclusion is borne out by

the    record.      Armstrong     was    the   senior   officer    in    charge    of

executing the warrant.           Corey Baker testified that as he stood on

the doorstep, Armstrong ran past him, into the house.                        Then,

while the Baker family was still outside, others pointed guns at

them, pushed them down to the ground and handcuffed them.                    Other

police brought Clementh Griffin and Cheryl Woods outside, but

Tiffany    Baker    could   not    say    whether    Armstrong    came    outside.

After the Bakers had been held outside for a few minutes, police

brought them into the house.             They left all the family but Corey

in the kitchen.         Police took Corey into the bedroom and searched
him, but Corey specifically said Armstrong was not involved in

the search.    Mrs. Baker said that she saw Armstrong for the first

time while inside the apartment and that he came into the kitchen

and told the other officers to unhandcuff her and remove the gun

that was pointed at her.             Tiffany Baker said she never saw

Armstrong until they were outside, after they had been released

and were leaving.         No testimony indicates Armstrong participated

personally in the hand-cuffing or gun-point detention.

          There is no per se rule that pointing guns at people,

or handcuffing them, constitutes an arrest.                 See, e.g., United

States v. Hastamorir, 881 F.2d 1551, 1557 (11th Cir. 1989) (use

of handcuffs and gun during investigatory stop); United States v.

Trullo, 809 F.2d at 113 (use of gun during investigatory stop);

United States v. Eisenberg, 807 F.2d 1446, 1451 (8th Cir. 1986)

(same); United States v. Hardnett, 804 F.2d 353, 357 (6th Cir.

1986) (same), cert. denied, 479 U.S. 1097 (1987); see generally

United States v. Chaidez, 919 F.2d at 1198.                But use of guns and

handcuffs must be justified by the circumstances, as in the cases

listed.      Moreover, we must look at the intrusiveness of all

aspects of the incident in the aggregate.                In this case, adding

up the use of guns and handcuffs and, indeed, the length of the

detention,    shows   a    very    substantial    invasion     of   the   Bakers'

personal security.         See United States v. Del Vizo, 918 F.2d 821
(9th Cir. 1990) (drawing weapon on cooperative suspect, ordering

him to lie prone, and handcuffing amount to arrest).                   Armstrong

himself   said   that       the    use    of   handcuffs    would     have   been

inappropriate    until     there    was   an   arrest,   and   that   the    other
officers with him work the same way.           Here, accepting the Bakers'

testimony, the police used all of those intrusive methods without

any reason to feel threatened by the Bakers, or to fear the

Bakers would escape.            It was dusk but still daylight as Mrs.

Baker, Corey and Jacquine, both age 17, and Tiffany, age 15,

approached the apartment.             Considering the facts in the light

most favorable to the Bakers, the appearances were those of a

family paying a social visit, and while it may have been a visit

to a wayward son, there is simply no evidence of anything that

should have caused the officers to use the kind of force they are

alleged to have used.            If Armstrong acquiesced in the other

officers' use of guns and handcuffs and if those actions were

such as the Bakers describe, the testimony, while conflicting,

would   support    a   finding    that   Armstrong    violated     the   Bakers'

Fourth Amendment rights.



           Although       Armstrong    did   not   personally    use   excessive

force or order its use, we conclude that there is sufficient

evidence   to    permit    an    inference   that    Armstrong    knew   of   and

acquiesced in the treatment the Bakers were receiving at the

hands of the other officers acting under his supervision.                     The

Bakers said they were handcuffed while outside.                  Armstrong said

he "hollered" out the door of the apartment "to bring those

people in."      Tiffany Baker testified that they were brought into

the kitchen and her testimony is sufficient to support a finding

that the Baker women sat in the kitchen for about ten minutes in

handcuffs.      Mrs. Baker said a gun was pointed at her head.            Corey
Baker was taken to a bedroom in handcuffs and was searched.                     He

testified that he remained handcuffed after he had returned to

the kitchen and for some five minutes more until he was told it

was all right to leave.             Tiffany Baker also testified that Corey

had his handcuffs on until the Bakers were released and told to

go outside.          It was a small apartment.4        Armstrong stated that

there was an open doorway from the room in which he was speaking

to Clementh to the kitchen or dining room where the Bakers were.

These       few    facts,   taken   together,   are   sufficient   to   allow    a

factfinder to infer that Armstrong was aware of how the Bakers

were being treated, but permitted that treatment to continue for

some amount of time before he stopped it.

                  This evidence satisfies at the summary judgment stage

the standard our cases require for supervisory liability, that is

"actual knowledge and acquiescence."             Rode v. Dellarciprete, 845

F.2d at 1207; Andrews, 895 F.2d at 1478.5              We believe that actual

knowledge can be inferred from circumstances other than actual



        4
      Armstrong stated that the apartment had only three rooms
and a bath. Corey Baker's testimony indicates that there was a
living room, kitchen, and more than one bedroom.
        5
      We note that other circuits have developed broader
standards for supervisory liability under section 1983.       For
example, the Eighth Circuit has held that "actual knowledge is
not an absolute prerequisite" and that "reckless disregard on the
part of a supervisor will suffice." Hall v. Lombardi, 996 F.2d
954, 961 (8th Cir. 1993) (quoting Howard v. Adkison, 887 F.2d
134, 138 (8th Cir. 1989)), cert. denied, 114 S.Ct. 698 (1994).
See Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 92 (1st
Cir. 1994); Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir.
1986).
sight.6    In this case we think the inference of knowledge could

arise from Armstrong's "hollering" instructions outside to others

who were holding the Bakers in handcuffs and at gunpoint; and his

presence in a small apartment where the Baker women were being

held in one room and Corey Baker was undergoing a protracted

search    in    another.       In   sum,    this   evidence      is    sufficient       to

withstand defendants' request for summary judgment.

                    The   Bakers   have    not   shown    that   Armstrong        was    a

policymaker for Monroe Township, and they have not shown any

evidence       of     Monroe   Township     practices     regarding      handcuffing

people found at the site of a search or pointing guns at them.

Their accounts of what happened in this particular case do not

establish a custom or usage.               City of Canton, 489 U.S. at 1206.

To the extent the record reveals any policy or custom of Monroe

Township regarding handcuffs or pointing guns, it exonerates the

Township, for Officer Armstrong stated that it would not have

been appropriate to handcuff the Bakers, and denied knowing that

anyone    had       handcuffed     the    Bakers   or    pointed      guns   at   them.

Moreover, he expressed the belief that his approach would have

been widely shared by other police.                 The Bakers have failed to

show that Monroe Township caused their injuries.


                                           D.


     6
      Although bound by Third Circuit precedent, we believe that
the dissent takes too narrow a view of actual knowledge,
apparently contending that Armstrong had to actually see the
activities to have actual knowledge of them.
              Finally, we reach the search of Corey Baker and of Mrs.

Baker's purse.          Corey Baker said he was taken into a back room

and searched.      He said:      "They searched me, took my wallet out of

the back pocket and went all through it, and they made me take

off my shoes, checked down inside, checked my socks and stuff."

He said he was forced to take his shirt off and that police went

through his pants pockets.             Mrs. Baker said her "pocketbook was

snatched and emptied out on the ground" while she was still

outside.

              As we have said, the actions to control the Bakers

while   the    search     warrant      was   executed   were     justified   under

Michigan v. Summers and Terry.                 A search of Corey's and Mrs.

Baker's persons is not supported by either line of cases.                       The

Supreme Court has recently reiterated that when a protective

search goes beyond a search for weapons and becomes a search for

evidence,     it   is    no   longer   valid    under   Terry.      Minnesota   v.

Dickerson, 113 S. Ct. 2130, 2136 (1993).                The alleged actions in

this case were full-scale searches for evidence, having nothing

to do with a limited Terry-frisk, and having no probable cause

justification.          These   allegations     constitute     Fourth   Amendment

violations.

              As with the use of excessive force, the key question

about the searches is whether Armstrong and Monroe Township were

responsible.       Armstrong denies that the Bakers were subjected to

even a limited Terry-frisk.
          Q:   Were Mrs. Baker or her children subject
               to any type of body search while they're
               in the house?
          A:       No, sir.

          Q:       Would it have been routine that they
                   would have been subject to any type of
                   pat-down search?

                                      . . . .

           A:      No, sir.

           Q:      Would it have been routine for the
                   officers securing them to have searched
                   their pocketbooks?

           A:      No, sir.




           However, as with the handcuffing and use of guns, we

conclude that there is a conflict in testimony as to Armstrong's

knowledge about the search of Corey Baker.                Corey testified that

police took him through the kitchen and the living room to the

first bedroom, where they searched him for five to ten minutes.

Police went through his wallet, made him take off his shoes and

shirt, and checked his socks.             Armstrong's mere presence in this

small apartment where Corey Baker was undergoing this protracted

search was sufficient to permit an inference that he was aware of

the evidentiary search.            Therefore, the district court erred in

entering summary judgment for Armstrong on this claim.

           On   the    other       hand,     the     search   of   Mrs.    Baker's

pocketbook occurred outside, while Armstrong was inside securing

the   apartment.       We     do    not    believe    Armstrong    can    be   held

accountable for this search, for the evidence does not support

the inference that Armstrong knew what was happening outside the
apartment.   Consequently, Armstrong was entitled to judgment on

Mrs. Baker's search claim.

           As with the handcuffing and use of guns, we see no

evidence that Monroe Township expressly or tacitly authorized

either of the searches.      Therefore, there can be no liability as

to the Township.




                                     IV.

           We reverse and remand for trial on the issue of whether

Armstrong acquiesced in the alleged use of excessive force (in

handcuffing the Bakers and pointing guns at them) and in the

search of Corey Baker, and for the district court to consider

whether   Tiffany   Baker   should    be   granted   leave   to   amend   her

complaint under Rule 15.       In all other respects, we affirm the

judgment of the district court.
Baker v. Monroe

No. 94-5069



Alito, Circuit Judge, concurring and dissenting.



           I join parts I, II, IIIA, and IIIB of the opinion of

the court.      I cannot, however, join parts IIIC and IIID, which

reverse the award of summary judgment in favor of Monroe Township

Police Office Robert Armstrong with respect to the plaintiffs'

claims regarding the search of Corey Baker and the alleged use of

excessive force during the Bakers' detention.             In my view, a

careful analysis of the applicable law and the summary judgment

record   reveals   that   the    district   court's    award   of   summary

judgment with respect to these claims should be affirmed.



                                     1.

           On June 1, 1990, Armstrong applied for a "no knock"

warrant to search an apartment in Williamstown, New Jersey, "and

persons found therein."         App. at 248-51.       In support of this

application, Armstrong submitted an affidavit stating:              that on

May 24, 1990, a confidential informant told him that Cheryl Woods

and her boyfriend, "Clem" (later identified as Inez Baker's son

Clementh Griffin), were distributing cocaine from this apartment;

that on May 27 Armstrong sent a confidential informant into the

apartment to make a controlled purchase of cocaine from Cheryl

Woods and that the confidential informant did so; that on May 29

a   concerned   citizen   informed   Armstrong    that   "numerous    young
adults    and     juveniles"      had      been       going      into    the    apartment         to

purchase cocaine; and that on May 31 Armstrong conducted a short

surveillance of the apartment and observed young people entering

and   leaving      the    apartment        in     a    manner      that,   in       Armstrong's

experience, was indicative of drug distribution activity.                                        Id.

Armstrong's application was granted, and the court issued a "no-

knock" warrant.          Id. at 147.

             At about 8:25 p.m. that evening, Armstrong and a team

of officers under his direction executed the warrant.                                Id. at 63,

95.      Armstrong       identified        the    other         officers   as       Sergeant      R.

Ferris     and    Lieutenant          T.   Watson          of    the    Gloucester         County

Prosecutor's       Office       and    Special         Agents      K.    Donnelly          and    J.

Vitaletti of the federal Drug Enforcement Administration.                                   Id. at

59-60.     Upon arriving at the apartment, the officers quickly left

their unmarked van and ran toward the door with their guns drawn.

Id. at 46, 62-64.               At precisely the time when the officers

arrived, the plaintiffs in this case were on or near the steps of

the apartment.          Corey Baker, age 17, was on the steps.                             Tiffany

Baker,    age     15,    was    behind      him       at   the    bottom       of    the    steps,

followed     by    her    older       sister,         Jacquine      Anderson,        and     their

mother, Inez Baker (collectively "the Bakers").                                Id. at 62, 65,
119, 129.        Armstrong was the first of the officers to leave the

van and reach the door of the apartment.                           Id. at 62, 65-66.              He

stated that when he saw the Bakers he could not tell whether they

were arriving at or leaving the apartment and that he had no idea

who   they      were     or    what    their      connection           might    be    with       the

apartment.        Id. at 78-79, 85.               He added that he did not know
whether one of them might be Cheryl Woods and that he thought

that one of them might possibly be armed.            Id. at 75, 79.      As

Armstrong neared the Bakers, he shouted for them to get down.

Id. at 62.    He then ran past them and entered the apartment.          Id.

at 62, 66, 131.

            Some of what happened next outside the apartment is in

dispute.     In his deposition, Armstrong stated that two of the

officers remained outside with the Bakers.           Id. at 77.    In their

depositions, the Bakers agreed that some officers (not including

Armstrong) remained outside, but the Bakers estimated that as

many as 20 officers participated in the raid.            Id. at 119, 123,

129, 131.      The Bakers stated that some of the officers who

remained     outside   (none   of   whom    apparently      were   deposed)

handcuffed them, kept them on the ground, and pointed guns at

them.   Id. at 120-23, 131-32.         In addition, Inez Baker stated

that one of these officers took her purse, emptied its contents

on the ground, examined the contents, put them back in the purse,

and then returned the purse to her.        Id. at 117.

            Inez   Baker   estimated    that   she    and    the   children

accompanying her remained outside the apartment for about ten

minutes.     Id. at 366.   There is no evidence that Armstrong was

present outside the apartment at any time during this period.

Nor is there any evidence that Armstrong looked out at the area

where the Bakers were held, that he would have been able to see

the Bakers from inside the apartment through any door or window,

or that he had any communications during this period with any of

the officers who were outside.
             While    the       Bakers    remained    outside    the     apartment,

Armstrong and the other officers who had entered secured the

premises and its occupants, Cheryl Woods and Clementh Griffin.

Id. at 67, 98, 115-16, 122.                 According to Armstrong, he then

shouted out the door "to bring those people in."                        Id. at 98.

The Bakers were brought into the kitchen, which was the first

room reached through the door.               Id. 71, 84, 112, 124-26.              The

Bakers said that they were handcuffed when they were led into the

apartment, and Inez Baker said that one of the officers pointed a

gun   at    her   during    this    time.     Id.    at    112-14,    123-25,     132.

However,     none    of   the    Bakers    said   that    Armstrong    was   in    the

kitchen when they were brought in.                   Id. at 113.       Corey Baker

stated that he was taken through the kitchen and living room to

the first bedroom.         Id. at 132.      There, he said, several officers

(not including Armstrong) subjected him to a thorough search

before they returned him to the kitchen.                  Id. at 134-35.

             Armstrong stated that after the Bakers were brought in,

he went to the kitchen, spoke to Inez Baker, and explained why

she and the children accompanying her had been ordered to get

down.      Id. at 68-69.        At this point, he said, he still did not

know who the Bakers were.            Id.     He stated that he then went to

another room and was speaking with Clementh Griffin when he heard

something that Inez Baker was saying.                 Id. at 69.       According to

Armstrong, he asked Sergeant Ferris who Inez Baker was and was

told that she was Clementh Griffin's mother.                     Id.       Armstrong

stated that he asked Clementh Griffin whether his mother and the

other Bakers had "anything to do with what may be found in [the]
house," and Griffin answered "no."          Id.   Armstrong said that he

then went back to the kitchen, explained to Inez Baker what had

occurred, apologized for the inconvenience, and told her that she

and her children (other than Clementh Griffin) were free to go.

Id.   Similarly, Inez Baker said that, after she and the children

accompanying her had been kept in the kitchen for some time,

Armstrong came out of another room and said that they should be

released.     Id. at 114.      She and Armstrong both estimated that

about 15 minutes had then elapsed from the time when she had been

brought into the apartment.      Id. at 71, 115.

            Armstrong   said    that   he   never   saw   Inez   Baker   in

handcuffs. (He does not appear to have been asked whether he ever

saw the other Bakers in handcuffs.)          Armstrong also stated that

he never saw guns pointed at any of the Bakers.            Id. at 67-68,

70.



                                   II.

            Search of Corey Baker.       Summary judgment was properly

entered in favor of Armstrong on this claim for two separate

reasons.

            A.   First, the terms of the search warrant doom this

claim.     The warrant (which is reproduced in full as an appendix

to this opinion) consisted of a printed form with typewritten

entries (possibly made prior to the submission of the application

to the judge) and handwritten entries (apparently made by the
judge).7      Paragraph one recited that Armstrong had applied "for a

search      warrant    for     the    (x)   premises   (x)   person    (x)    vehicle

described      below."         App.    at    147.      Paragraph     two    commanded

Armstrong      and     other     officers     "to   search    the     (x)    premises

described      below     (x)     person(s)     described     below    (x)    vehicle

described below." Id. Paragraph 4 stated:
          The following is a description of the (x) premises, (x)
          person, (x) vehicle to be searched:

              an apartment located in an apartment building at 607
              South Main Street, Williamstown, New Jersey, a three
              (3) story wood frame residence located on the corner of
              South Main Street and Virginia Avenue, having a parking
              lot on the Virginia Avenue side and directly across the
              street from the Williamstown Fire Company.

Id.


              To my mind, by far the best interpretation of these

provisions of the warrant is that they authorized a search of,

not only the premises of the apartment, but also any persons

found on the premises.               That the judge who signed the warrant

intended to authorize a search of some person or persons seems

perfectly clear, since the space for "person(s)" in paragraph 2
and the space for "person" in paragraph 4 were both marked with

x's.       (Are we to assume that both these x's were mistakes?)                 The

only remaining question, then, is the identity of the person or

persons who were to be searched, and even if we look only at

paragraph 4, the answer to this question seems reasonably plain.


       7
       In the quotations from the warrant that appear below, the
printed text is in regular type, and the typewritten text is
underlined.
Since      paragraph       4     is     supposed       to    describe      "premises,"

"person[s]," and "vehicle[s]," but expressly refers only to the

premises of the apartment, the most reasonable interpretation is

that the warrant authorized a search of the premises and any

persons or vehicles found on the premises.

             This interpretation is reinforced by paragraphs one and

two of the warrant and the warrant application.                          As previously

noted, Armstrong applied for authorization to search the premises

of   the   apartment      "and    persons      found      therein."      Id.    at    251.

Paragraph one of the warrant, which paraphrased the terms of

Armstrong's application, stated that he had applied "for a search

warrant for the (x) premises [and] (x) person(s) . . . described

below."      Id. at 147.          Thus, paragraph one clearly equated the

phrase "persons found therein" with the phrase "persons . . .

described below."         Paragraph two then authorized a search of the

"(x) premises [and] (x) person(s) . . . described below."                             Id.

Consequently, paragraph two authorized precisely what, according

to paragraph one, Armstrong sought -- and that was permission to

search the premises "and persons found therein."                      Id. at 25.

             For    these      reasons,        I    believe       that   the    warrant

authorized a search of any persons found on the premises.                             This

interpretation is consistent with all of the language of the

warrant,     and    it    gives       effect   to   and     harmonizes    all   of    the

warrant's provisions.             I acknowledge, of course, that it would

have been better draftsmanship to have referred specifically in

paragraph     4    to    any   persons     found     on     the   premises,     but   for
practical purposes the scope of the search that was authorized

seems to me quite apparent.

            The majority's alternative interpretation is completely

unpersuasive. The majority writes:
          [T]he only common-sense interpretation of the [warrant]
          is that no one ever bothered to complete it to include
          specified persons as well as premises.     This flawed
          document does not demonstrate that the magistrate
          determined search of any particular person to be
          justified.


Maj. typescript at 3 n.1.                From this paragraph, I take it that

the   majority         believes    that      the   municipal     judge    intended   to

authorize a search of named persons but neglected to ensure that

the   names    of       these     persons     were    included    in     the   warrant.

However, this interpretation requires the assumption that the

judge   made       a     serious       and    basic   error.        Moreover,     this

interpretation is completely inconsistent with the search warrant

application, which did not request authorization to search any

named persons but, instead, sought permission to search "any

persons found" on the premises.                    Thus, in order to accept the

majority's interpretation, one must assume that the judge who

issued the warrant rejected Armstrong's request for authorization

to search any persons found on the premises, decided instead to

authorize      a       search     of     named     individuals      (although     such

authorization had not been sought), and then forgot to ensure

that these individuals were identified in the warrant.                            This

interpretation,           far     from       being    "the     only      common-sense

interpretation" of the warrant, seems to me far-fetched.
           After advancing this interpretation of the warrant, the

majority   contends     that   if    the   warrant   were    interpreted     to

authorize the search of any person or persons it would violate

the Fourth Amendment's particularity requirement.8              After noting

that the warrant did not name any particular person or persons,

the majority continues:
          Nor did the language in the description refer to a
          place and any or all "persons found therein" as did the
          warrants before the courts in State v. Sims, 382 A.2d
          638, 642 (N.J. 1978) and State v. DeSimone, 288 A.2d
          849, 850 (N.J. 1972).    The Fourth Amendmnet requires
          that the warrant particularly describe the place to be
          searched and the persons to be seized. The face of the
          warrant   demonstrates  its   failures   to  meet   the
          requirement of the Fourth Amendment.


Id.   This argument is wrong and is not supported by either State

v. Sims, 382 A.2d 638, 642 (N.J. 1978), or State v. DeSimone, 288

A.2d 849, 850 (N.J. 1972).

           Sims    involved    the    application    of     legal    principles

articulated in DeSimone.        There, the New Jersey Supreme Court

rejected the argument that a warrant authorizing a search of all

persons    found   on    described     premises      violated       the   Fourth

Amendment's particularity requirement.            Writing for the court,

Chief Justice Weintraub observed:
          With regard to the Fourth Amendment demand for
          specificity as to the subject to be searched, there is
          none of the vice of a general warrant if the individual
          is thus identified by physical nexus to the ongoing
          criminal event itself. In such a setting, the officer
          executing the warrant has neither the authority nor the

      8
      The Fourth Amendment, of course, provides that warrants
shall not be issued unless "supported by Oath or affirmation, and
particularly describing the place to be searched and the persons
or things to be seized" (emphasis added).
          opportunity to search everywhere for anyone violating a
          law.   So long as there is good reason to suspect or
          believe that anyone present at the anticipated scene
          will probably be a participant, presence becomes the
          descriptive fact satisfying the aim of the Fourth
          Amendment. The evil of the general warrant is thereby
          negated. To insist nonetheless that the individual be
          otherwise described when circumstances will not permit
          it, would simply deny government a needed power to deal
          with   crime,  without   advancing  the   interest the
          Amendment was meant to serve.

288 A.2d at 850.

          Instead of presenting a "particularity" question,


Chief Justice Weintraub wrote, a warrant authorizing a search of

any person found on described premises presents a question of

probable cause:

          On principle, the sufficiency of a warrant to search
          persons identified only by their presence at a
          specified place should depend upon the facts.         A
          showing that lottery slips are sold in a department
          store or an industrial plant obviously would not
          justify a warrant to search every person on the
          premises, for there would be no probable cause to
          believe that everyone there was participating in the
          illegal operation. On the other hand, a showing that a
          dice game is operated in a manhole or in a barn should
          suffice, for the reason that the place is so limited
          and the illegal operation so overt that it is likely
          that everyone present is a party to the offense. Such
          a setting furnishes not only probable cause but also a
          designation of the persons to be searched which
          functionally is as precise as a dimensional portrait of
          them.

Id.


          This    analysis   is   specifically   approved   in   Professor

LaFave's treatise:
          Unquestionably, the DeSimone rationale is correct. A
          search warrant authorization to search all persons
          found within a specifically described place is not
          lacking in particularity in the sense that the
            executing office will be unable readily to determine to
            whom the warrant applies.     Rather, the question is
            whether there is sufficient particularity in the
            probable cause sense, that is, whether the information
            supplied the magistrate supports the conclusion that it
            is probable anyone in the described place when the
            warrant is executed is involved in the criminal
            activity in such a way as to have evidence thereof on
            his person. If the evidence tendered to the magistrate
            supports such a conclusion, then the search-all-
            persons-present warrant is unobjectionable.     If the
            evidence does not support such a conclusion, then the
            searches of those present find no justification in the
            search warrant.


2 Wayne R. LaFave, Search and Seizure § 4.5e at 231 (1987)

(footnotes omitted).

            I   agree    with   DeSimone      and    with    Professor       LaFave's

analysis, and I therefore think that the validity of the warrant

at issue in this case depends on whether the search warrant

application     established       probable    cause     to    believe       that    all

persons found on the premises of the apartment were involved in

the   regular   drug     activity      that   had    been    going    on     at    that

location.       The    majority      says   nothing    with       respect    to    this

question, but I believe that the requisite probable cause was
shown.

            The holdings in State v. DeSimone, supra, and State v.

Sims, supra, both of which seem to me to be correct, serve to

frame the question presented by the warrant involved here.                           In

DeSimone,   the       police   had    probable      cause    to    believe    that    a

particular car was regularly used to drop off "policy" slips, a

warrant was issued to search the car and "all persons found

therein," and the New Jersey Supreme Court upheld the warrant,
observing    that      there     was    probable    cause    to   believe     that any

person found in the car "whether driver or passenger would be

involved in the criminal operation."                 288 A.2d at 854.         In Sims,

by contrast, the police intercepted a single telephone call to a

service station owned by "one Robert (Bob) Quinlan," and during

this call "[t]he caller placed two illegal horse bets with a

person identifying himself as Bob."                 382 A.2d at 641.          A warrant

was issued to search all persons found in the station, but the

New Jersey Supreme Court concluded that there was no "probable

cause to believe that all persons who might be found on the

premises     of    the        service     station    were     engaged    in     illegal

gambling."       Id.

             In the case now before us, the police had evidence that

the apartment had been the scene of frequent drug sales to a

large number of buyers for some time.                     Thus, there was probable

cause to believe that anyone living in the apartment was involved

in this activity.         There was also a good likelihood that visitors

to   the   apartment      were     drug    buyers.        While   it   was    certainly

possible that there would also be some innocent visitors to the

apartment (such as the Bakers), I think that there was probable

cause to search anyone found on the premises.

             There       is     considerable        authority     supporting       this

conclusion.       In the Commonwealth v. Smith, 348 N.E.2d 101 (Mass.
1976),     the    Supreme      Judicial    Court     of    Massachusetts      upheld   a

provision of a warrant authorizing a search of any person found

in an apartment.              The affidavit submitted in support of the

warrant stated that an informant had recently seen heroin sales
within    the       apartment    and    that    police    officers      conducting      a

surveillance of the apartment had seen known drug traffickers

entering and leaving.             Id. at 106.      "From these asserted facts

and fair inferences drawn therefrom," the court stated, "it was

permissible to conclude that it was probable that any person in

the apartment was a participant in the trafficking in heroin

there."       Id.

               In State in Interest of L.Q., 566 A.2d 223 (N.J. Super.

Ct.    App.    Div.    1989),     the   court    upheld    a    comparable       warrant

provision based on facts strikingly similar to those present in

the case now before us.                 The warrant was issued based on an

affidavit stating that surveillance of the residence had revealed

comings    and       goings   characteristic      of     drug   sales     and    that   a

controlled purchase of drugs had been made at the residence.                        Id.

at 223-24.       The court wrote:
               The evidence was sufficient to create a well-grounded
               suspicion or belief that numerous sales of [drugs] were
               being conducted in the premises.          Although the
               affidavit did not exclude the possibility of other
               activities on the premises, the description of the
               activity actually observed provided a firm foundation
               for the suspicion or belief that any person in the
               private premises was involved in the overt unlawful
               activity of sale and possession of cocaine.      Such a
               suspicion or belief is not limited to persons already
               there when the police arrive, but reasonably extends to
               a person who enters the premises during the search.


Id. at 226 (footnote omitted).

               The    Superior    Court   of    Pennsylvania      has    handed    down

similar decisions.            See Commonwealth v. Graciani, 554 A.2d 560,

561-62 (Pa. Super. 1989); Commonwealth v. Heidelberg, 535 A.2d

611,     615    (Pa.     Super.     1987).        So     have    courts     in    other
jurisdictions.   See, e.g., Gonzales v. State, 761 S.W.2d 809, 811

(Tex. App. 1988); People v. Betts, 456 N.Y.S.2d 278, 279 (1982).

In accordance with these authorities, I conclude that the warrant

in this case was supported by probable cause to search any one

found on the premises.9

          B.   Moreover, even if the warrant did not authorize the

search of Corey Baker and that search was illegal, Armstrong was

still entitled to summary judgment pursuant to our court's well

established standard for individual liability in an action under

42 U.S.C. § 1983.   In such an action, we have held, an individual

defendant is liable only if he or she has "personal involvement

in the alleged wrongs."    Rode v. Dellarciprete, 845 F.2d 1195,

1207 (3d Cir. 1988).   "Personal involvement can be shown through

allegations of personal direction or of actual knowledge and

acquiescence."   See also Keenan v. Philadelphia, 983 F.2d 459,

466 (3d Cir. 1992); Andrews v. Philadelphia, 895 F.2d 1469, 1478

(3d Cir. 1990).10    Id.    Here, there is no suggestion in the

     9
      I do not reach -- and I do not read the majority opinion as
reaching -- the qualified immunity defense pled in Armstrong's
answer.   See App. at 29; Anderson v. Creighton, 483 U.S. 635
(1987).   The district court did not base its award of summary
judgment on this ground, and Armstrong did not raise this issue
on appeal as an alternative ground for affirmance. The majority
has not addressed this issue, and accordingly, any consideration
of this issue will have to await further proceedings.
     10
      Although the majority hints, see Maj. typescript at 14
n.5, that it likes the law of some other circuits better than our
own, the majority fails to show how the claims at issue here
could survive summary judgment under the precedents it cites.
The majority states that other circuits, rather than demanding
"actual knowledge," have held that "reckless disregard on the
part of a supervisor will suffice."        Id. (quoting Hall v.
Lombardi, 996 F.2d 954, 961 (8th Cir. 1993)).       However, the
summary judgment record that Armstrong personally directed the

other officers to search Corey Baker, and there is insufficient

evidence to show either his "actual knowledge" or "acquiescence."

                As for actual knowledge, although the majority thinks

that a rational trier of fact could infer, based solely on the

small size of the apartment, that Armstrong was aware that the

search of Corey Baker was taking place, I am doubtful about

this.11       But in any event, even if a rational trier of fact could

infer        that    Armstrong   was     aware   that   Corey    Baker     was    being

searched, I think that the "actual knowledge" requirement demands

something more -- viz., knowledge that the other officers lacked

a lawful basis for the search.

                A simple hypothetical demonstrates the need for this

additional          showing.     Suppose     a     supervisory    policy    official

happened to observe subordinates from some distance while they

were carrying out a Terry frisk.                   If it turned out that this

frisk        was     unlawful    because     the     frisking    officers        lacked

reasonable          suspicion,   could    the    supervisory     official    be    held

liable under Section 1983 simply because he or she had actual


majority makes no effort to demonstrate that there is sufficient
evidence in the summary judgment record to establish that
Armstrong was reckless in failing to recognize that the other
officers were acting unlawfully and, as I attempt to show below,
Dissenting typescript at 15-19, I do not think that the summary
judgment record contains such evidence.
        11
        The search of Corey Baker would not necessarily have
taken a long time, and therefore unless Armstrong happened to
look into the bedroom where the search was allegedly taking place
during that relatively brief period, he would not have seen the
search.
knowledge that the frisk had occurred?           I think the answer must

clearly be "no."     If the supervisor did not know (or at least

have cause to know)12 that reasonable suspicion was lacking, the

supervisor should not be liable.

           Here, there is no direct or circumstantial evidence

that Armstrong possessed such knowledge.               All that the record

shows is that Armstrong had seen Corey Baker, a 17 year old, a

few steps from the door of an apartment believed to be a center

of cocaine sales to young people, that Corey Baker was then held

outside   for   perhaps   ten   minutes   by   other   officers,   and   that

immediately thereafter Corey Baker was taken into the apartment

to the first bedroom and searched.         From these facts, it cannot

reasonably be inferred that Armstrong knew (or should have known)

that the other officers did not have a legitimate basis for

searching Corey Baker -- such as consent or probable cause based

on a pat down or statements made by other persons on the scene.

Nor can it be inferred that Armstrong acquiesced in the allegedly

illegal conduct.     Accordingly, the district court was correct in

granting summary judgment in favor of Armstrong on the claim

grounded on the search of Corey Baker.




    12
      As previously noted, our precedents require "actual," not
constructive knowledge.    In the discussion above, I do not
suggest that constructive knowledge is sufficient.     Rather, I
argue that it would be manifestly unjust to hold a supervisor
liable when he or she lacks even constructive knowledge.
                                    III.

           Excessive Force.       I now turn to the claim based on the

use of excessive force during the Bakers' detention. The majority

holds -- and I agree -- that the detention of the Bakers during

the execution of the warrant was itself proper.                 The majority

concludes, however, that the Fourth Amendment was violated by the

use of handcuffs and guns during that detention and that the

evidence is sufficient to sustain a judgment against Armstrong

for this violation.

           Claims   that    law   enforcement   officers   used    excessive

force in the course of an arrest or investigatory stop must be

analyzed   under    the    "reasonableness"     standard   of    the   Fourth

Amendment.   Graham v. Connor, 490 U.S. 386, 396 (1989).                  The

Supreme Court has explained:
          Our Fourth Amendment jurisprudence has long recognized
          that the right to make an arrest or investigatory stop
          necessarily carries with it the right to use some
          degree of physical coercion or threat thereof to effect
          it.   Because "[t]he test of reasonableness under the
          Fourth Amendment is not capable of precise definition
          or mechanical application," . . . however, its proper
          application requires careful attention to the facts and
          circumstances of each particular case. . . .

           The "reasonableness" of a particular use of force must
           be judged from the perspective of a reasonable officer
           on the scene, rather than with the 20/20 vision of
           hindsight.

Id.   (citations omitted).


           If an officer is making an arrest, it seems to me that

the use of handcuffs will always be reasonable.            As for the use

of handcuffs during an investigatory stop and the drawing of a
gun during an arrest or an investigatory stop, the cases hold

that    reasonableness      must     be   judged    based      on       the    particular

circumstances of the case.            See, e.g., Foote v. Dunagan, 33 F.3d

445,    448-49   (4th     Cir.   1994)    (reasonable         to    draw      gun   during

investigatory stop; United States v. Fountain, 2 F.3d 656, 666

(6th Cir.), cert. denied, 114 S. Ct. 608 (1993) (reasonable to

draw gun and use handcuffs during investigatory stop); Tom v.

Voida, 963 F.2d 952, 958 (7th Cir. 1992) (reasonable to kneel and

attempt    to    handcuff    during       investigatory        stop);         Courson   v.

McMillian, 939 F.2d 1479, 1493 (11th Cir. 1991) (reasonable to

point     shotgun   and     direct    person       to   lie        on   ground      during

investigatory stop); United States v. Haye, 825 F.2d 32, 35 (4th

Cir. 1987) (reasonable to wrestle to ground and use handcuffs

during investigatory stop); United States v. Nargi, 732 F.2d

1102, 1106 (2d Cir. 1984) ("`[T]here is no hard and fast rule

concerning the display of weapons' in investigative stops.");

United States v. Taylor, 716 F.2d 701 (9th Cir. 1983) (reasonable

to draw gun and use handcuffs during investigatory stop); cf.

Black v. Stephens, 662 F.2d 181, 188-89 (3d Cir. 1981), cert.
denied, 455 U.S. 1008 (1982) (officer's pointing of gun during

traffic altercation violated due process).

            In this case, therefore, in order to hold Armstrong

liable for the improper use of handcuffs and guns by the other

officers, it must be shown (a) that Armstrong knew that the other

officers used handcuffs and guns and (b) that Armstrong knew that

the other officers lacked reasonable grounds for their conduct.
               I    believe     that        the     summary       judgment      record    is

sufficient to establish the first element described above.13

I do not think, however, that the record supports the inference

that Armstrong knew, at any point appreciably before he ordered

the Bakers' release, that the other officers lacked a reasonable

basis for handcuffing the Bakers or holding them at gunpoint.

Moreover, the record does not show that Armstrong recklessly

failed    to       inquire    about    the        basis   for     the   other    officers'

actions.       The record does not establish how much time elapsed

between    the       point    when    he     first       saw   that     the   Bakers     were

handcuffed and held at gunpoint and the point when he ordered

their release, but it appears that this period must have been

less than 15 minutes, see supra note 3, and the record shows that

Armstrong was busy during this time questioning Clementh Griffin.

Accordingly, I do not see how Armstrong could be held to have had

"actual    knowledge"          of      or     to     have       "acquiesced"      in     the

constitutional         violations       that       the    other    officers      allegedly

committed.




     13
      Since we are reviewing a grant of summary judgment, I
agree with the majority that we must accept the Bakers'
statements that handcuffs and guns were employed. In addition,
while I question (for reasons explained above in connection with
the alleged search of Inez Baker's purse) whether it is
reasonable to infer that Armstrong saw what was done to the
Bakers outside the apartment, I think that the record permits the
inference that he saw that the Bakers were handcuffed when they
were brought into the house and that he saw that a gun was
pointed at Inez Baker while she was in the kitchen.
                                    IV.

          For these reasons, I believe that the district court

correctly granted summary judgment in favor of Armstrong.               I

share the majority's sympathy for the Bakers' plight.          It was a

most unfortunate coincidence that they happened to arrive at the

scene of a drug search just as the officers were arriving to

execute the warrant.   Their experience must have been terrifying.

It is also most unfortunate that, prior to the expiration of the

statute   of   limitations,   the    Bakers   did   not   ascertain   the

identities of the officers who allegedly engaged in the conduct

that is claimed to have violated their constitutional rights.

Sympathy for the Bakers, however, does not justify a decision

that ignores the deficiencies in the summary judgment record.           I

therefore dissent from the decision of the majority insofar as it

reverses the district court's award of summary judgment.
                                               14
                                    APPENDIX

                        SUPERIOR COURT OF NEW JERSEY

STATE OF NEW JERSEY

          vs                                                SEARCH WARRANT

Cheryl Woods

         Defendant



               To   Detective Robert Armstrong            and/or any officer of

Gloucester County Prosecutor's Office, any officer of the New

Jersey    State     Police    or   any   officer    of    any    Police   Department

having jurisdiction:

               1.   This matter being opened to the Court by Detective

Robert    Armstrong     of    Monroe     Township,   on     application        for   the

issuance for a search warrant for the (x) premises (x) persons

(x) vehicle described below, and the Court having reviewed the

(x) affidavit of ( ) testimony under oath of the said Detective

Robert    Armstrong     and    being     satisfied       therefrom      that   located

therein or thereon are:
          evidence of possession and distribution of controlled
          dangerous substances, including, but not limited to,
          controlled    dangerous    substances   and    relating
          paraphernalia, records, documents and other items
          relating   to  the   possession   and distribution   of
          controlled dangerous substances.

and that probable cause exists for the issuance of such warrant:


               2.   YOU ARE HEREBY COMMANDED to search the (x) premises

described       below   (x)    person(s)     described          below   (x)    vehicle
     14
      Printed text is in regular type.      Typewritten text is
underlined. Handwritten text is italicized.
described below and to serve a copy of this warrant on such

person or on the person in charge or control of such premises;

              3.    YOU ARE HEREBY ORDERED, in the event you seize any

of   the    above    described   articles,    to   give   a    receipt   for   the

property so seized to the person whom it was taken or in whose

possession it was found, or in the absence of such person to

leave a copy of this warrant together with such receipt in or

upon the said premises from which the property is taken.

              4.    The following is a description of the (x) premises,

(x) person, (x) vehicle to be searched:
          an apartment located in an apartment building at 607
          South Main Street, Williamstown, New Jersey, a three
          (3) story wood frame residence located on the corner of
          South Main Street and Virginia Avenue, having a parking
          lot on the Virginia Avenue side and directly across the
          street from the Williamstown Fire Company.


              5.    Special instructions (Time Limitations, etc.):

                     Anytime day or night - no knock

              Given and issued under my hand at           10   o'clock   p     m.,

this       First      day of     June        , 1991.
