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


6-19-2007

McCracken v. Freed
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1510




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     NO: 06-1510


                   E. JEAN McCRACKEN; TED A. McCRACKEN,
                                          Appellants

                                           v.

   ROBERT A. FREED, Chief of Police, Upper Gwynedd Township Police Department,
  sued in his individual and official capacities; JOHN DOE I, Police Commando, Special
       Weapons and Tactics Unit, North Penn Task Force, Hatfield Township Police
    Department, sued in his individual and official capacities; HATFIELD TOWNSHIP;
 JOHN DOE II, Police Commando, Special Weapons and Tactics Unit, North Penn Task
      Force, Horsham Township Police Department, sued in his individual and official
 capacities; HORSHAM TOWNSHIP; JOHN ROE, Police Commando, Special Weapons
 and Tactics Unit, North Penn Task Force, Borough of Lansdale Police Department, sued
   in his individual and official capacities; BOROUGH OF LANSDALE; JOHN ROE I,
   Police Commando, Special Weapons and Tactics Unit, North Penn Task Force, Lower
   Gwynedd Township Police Department, sued in his individual and official capacities;
LOWER GWYNEDD TOWNSHIP; JOHN ROE II, Police Commando, Special Weapons
   and Tactics Unit, North Penn Task Force, Montgomery Township Police Department,
    sued in his individual and official capacities; MONTGOMERY TOWNSHIP; JOHN
 ROE III, Police Commando, Special Weapons and Tactics Unit, North Penn Task Force,
Borough of North Wales Police Department, sued in his individual and official capacities;
BOROUGH OF NORTH WALES; JOHN ROE IV, Police Commando, Special Weapons
   and Tactics Unit, North Penn Task Force, Towamencin Township Police Department,
sued in his individual and official capacities; TOWAMENCIN TOWNSHIP; JOHN POE,
  Police Commando, Special Weapons and Tactics Unit, North Penn Task Force, Upper,
   Gwynedd Township Police Department, sued in his individual and official capacities;
   JOHN POE I, Commander, Upper Gwynedd Township Police Department, sued in his
 individual and official capacities; JOHN POE II, Supervisor, Upper Gwynedd Township
   Police Department, sued in his individual and official capacities; UPPER GWYNEDD
    TOWNSHIP; JOHN ROE V, Police Commando, Special Weapons and Tactics Unit,
        North Penn Task Force, Whitpain Township Police Department, sued in his
  individual and official capacities; WHITPAIN TOWNSHIP; JAMES PIFER; STEVEN
       FORD; STEPHEN GILLEN; SCOTT CLARK; FREDERICK LYNCH; JOHN
      COTTRONE; MICHAEL PAUL; PATRICK HANRAHAN; JOHN CIARELLO;
 STEVEN CAMERON; JUSTIN DIBONAVENTURA; DAVID GORI; CHRISTINE
 BUTLER; COREY MOYER; VINCENT MEDVEKUS; RYAN DEVLIN; THOMAS
LAWSON; BENJAMIN TOWNSEND; JOHN BRINKMAN; WILLIAM K. CHAPMAN


                    On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                              (D.C. Civ. No. 03-cv-04923)
                     District Judge: Honorable Timothy J. Savage


                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 December 19, 2006

          Before:    BARRY, CHAGARES AND ROTH, CIRCUIT JUDGES

                                  (Filed: June 19, 2007)


                                        OPINION



PER CURIAM

       On August 28, 2001, armed members of the North Penn Area Tactical Response

Team (“the TRT”), wearing gas masks, burst into the home of Eunice McCracken and

arrested her son Ted McCracken. The McCrackens claim that the TRT used excessive

force in the arrest. They both appeal the District Court’s order granting the Defendants’

motions for summary judgment. We will affirm.




                                             2
                                              I.

       On August 28, 2001, at approximately 11:30 a.m., six police officers from the

Upper Gwynedd Police Department went to Mrs. McCracken’s home in North Wales,

Pennsylvania, to serve an arrest warrant issued on August 17, 2001, for Mr. McCracken.

Mr. McCracken had moved into his mother’s house after residing for a short period in

Maryland. The affidavit of probable cause specified that Mr. McCracken was a sex

offender required to register his address with the New York State authorities. He failed to

do so. The officers were also serving a misdemeanor warrant for McCracken’s arrest for

loitering at night.

       Detective James Pifer, the officer responsible for investigating the registration

offense, explained that upon arriving at the McCrackens’ house, Sergeant Gillen knocked

on the door. He also described that Officer Lynch announced that they were the police

and wanted to talk to Mr. McCracken. Pifer, in his deposition, testified that:

       [Mr. McCracken] made contact with [Lynch], visually. Next thing we
       know, the door is being bolted shut. Some things sounded like they were
       being slid. And we felt that we had a barricade situation going on. At that
       point, for the safety of the citizens, the safety of the officers, the possible
       fact that with what happened to your [McCracken’s] mother, we didn’t
       know what was going on, we backed off and called the Chief because we
       felt at the time we had a barricaded subject and needed the tactical team.

(Pifer Dep., Docket # 110 Ex. B. 17:18–18:1, Nov. 12, 2004.)1


   1
     After the TRT had entered the home, TRT member Patrick Hanrahan noted that
“[t]he front door of the residence was barricaded with furniture so that the front door
could not be opened.” (Supp. App. of Freed et al. at 119a.) However, Mr. McCracken
claims that he never barricaded the door.

                                              3
       McCracken explained that he heard a knock, but was typing at the time so it took

him a few minutes to get to the door. He checked the locks, but did not answer because

he contends that the police did not announce their purpose. (App. at 318-319.)2 Mrs.

McCracken also stated that she heard a knock and checked the door. However, she stated

that when she got to the door, the officers were leaving and she assumed it was nothing

important. (Id. at 319-320.)

       Upon retreating from the house, the officers called Upper Gwynedd Police Chief

Robert Freed. Freed recalled in his affidavit that:

       I knew Mr. McCracken had been arrested for rape, forced sodomy, and
       attempted murder in the State of New York in 1977. . . . While out on bail
       on that charge, I knew that Mr. McCracken again raped, attacked, and
       attempted to kill the same woman. . . . I knew that Mr. McCracken was
       convicted of the charges and served nearly 20 years in prison in New York.
       . . . I knew that Mr. McCracken had pending weapons charges against him
       in the State of Maryland. Specifically, I knew that he had been arrested for
       carrying a concealed black powder gun in a bank.3

(Supp. App. Robert Freed, et al. at 69a.)

       Freed was unsure whether Mrs. McCracken was in the residence. He knew that

four years prior to the incident, Mrs McCracken filed an assault charge against her son for

allegedly choking her neck. However, Mrs. McCracken refused to pursue the issue and


   2
    Detective Pifer could not recall whether Sergeant Gillen stated that they had a
warrant. (Pifer Dep. 17:15-17).
   3
     Freed also testified that the police believed that Mr. McCracken had previously
reinforced the walls and ceiling of the house in order to act as a barricade. However, the
“reinforcement” that Freed described was insulation, which officers had seen McCracken
install previously when investigating a noise complaint. (App at 309.)

                                             4
the charges were dropped. Freed decided that the information he possessed justified

calling in the TRT.

       The TRT arrived at the scene at 1:12 p.m. in tactical uniforms. (App. at 20; Supp.

App. of Freed et al. at 70a.) Chief Freed also arrived at the scene, assuming command of

operation. (App. at 80:17-25.) At 1:50 p.m. Sergeant Ford began placing phone calls to

the residence. Over the course of thirty minutes, eighteen phone calls were placed.

Fourteen calls resulted in a busy signal. The other four, including the first and last call,

were picked up by an answering machine. Ford left messages asking Mr. McCracken “to

please pick up,” indicating that the officer “needed to speak with him.” (Supp. App. of

Freed et al. at 96a). The last call was placed at 2:18 p.m. Id.

       Before actually raiding the house, Officer Cutrone, who responded with the TRT,

explained that the team attempted to contact Mr. McCracken, using a public address

system, sirens, as well as knocking on the front and back doors of the house, and shouting

to get the McCrackens’ attention. (Supp. App. of Freed et al. at 136a.) None of the

depositions or affidavits identify to what extent these measures were used or at what

times. While the TRT decided what to do, the Upper Gwynedd officers blocked off the

street and evacuated residents from neighboring houses.

       During the summary judgment hearing, Mr. McCracken explained that he was not

aware of these efforts to contact him. He claimed that he was using the internet, which

tied up the phone lines and resulted in the fourteen busy signals. He also claimed that he

was unable to hear the commotion outside because the windows were closed and the air

                                              5
conditioner was making a lot of noise. He did not hear the public address system until the

moment that the TRT entered the house. (See App. at 325-27.)

       Shortly after the last phone call was made, TRT officers stationed themselves in

the front and rear of the house. According to the affidavits of the officers in the TRT, at

roughly 2:38 p.m., TRT officers broke the front windows and delivered two Oleoresin

Capsicum (“pepper spray”) canisters through the front windows of the home; only one of

the canisters discharged. (Supp. App. of Freed et al. at 119a). TRT Officer Cutrone then

broke the sliding glass door in the rear of the house and entered the apartment with three

other armed officers. (Supp. App. of Freed et al. at 117a.) Mr. McCracken was in the

kitchen and was ordered to get to the floor, which he did. Id. Cutrone then placed Mr.

McCracken in handcuffs, lifted him to his feet and escorted him out of the building. Id.

Mrs. McCracken was in one of the bedrooms into which the pepper spray canisters were

delivered. She testified that one of the officers pointed and held a rifle with a bayonet to

her chest. She also testified that she received minor cuts from the broken glass. Mrs.

McCracken refused treatment. Mr. McCracken was arraigned and held on the registration

charge. The charge was eventually dismissed because the prosecution was unable to

prove that McCracken received notice from the State of New York of his obligation to

register.

       In 2004, both Mr. and Mrs. McCracken filed suit under 42 U.S.C. § 1983

requesting monetary damages for the unlawful use of excessive force. The Defendants

included a number of townships, police departments, and individual officers in both their

                                              6
individual and official capacities. On January 21, 2005, the District Court granted

summary judgment in favor of several local governments because none contributed any

personnel to the operation. The remaining participating municipalities and the officers

involved filed a motion for summary judgment.

       On January 6, 2006, the District Court granted the motion. The District Court held

that the McCrackens failed to show that any of the townships had a policy, custom, or

practice that exhibited deliberate indifference to the McCrackens’ constitutional rights. It

held that the McCrackens’ failure-to-train argument was without merit because the TRT

requires certification and training and the McCrackens failed to identify how this was

inadequate. It also rejected the McCrackens’ failure-to-equip theory.

       With respect to the individual officers, the District Court concluded that under

Sharrar v. Felsing, 128 F.3d 810, 821-22 (3d Cir. 1997), the force used was not

“objectively unreasonable.” The Court analyzed the alleged deprivation of Mr. and Mrs.

McCracken under the same theory. Directing the majority of its attention to Chief Freed,

the District Court held that no rational jury could conclude that Freed applied the Sharrar

factors in an unreasonable manner in deploying and directing the TRT team. It then held

that Freed was entitled to qualified immunity because “[e]ven if [Freed’s] decisions and

those acting upon them were objectively unreasonable, a reasonable officer would not

have thought his conduct was unlawful.” McCracken v. Freed, No. 03-4923, slip op. at

23 (E.D. Pa. Jan. 6, 2006).




                                             7
       We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary over an

order granting a motion for summary judgment. See Kelly v. Drexel University, 94 F.3d

102, 104 (3d Cir. 1996). In evaluating the evidence, we take the facts in the light most

favorable to the nonmoving party and draw all reasonable inferences in his favor. Morton

Int’l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 680 (3d Cir. 2003). Summary judgment

is appropriate when the record shows that there is no need of a trial because “there is no

genuine issue of material fact and []the moving party is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Cattrett, 477 U.S. 317, 322 (1986).

                                            II.

       The McCrakens filed a pro se notice of appeal challenging a number of the District

Court’s orders, but only the order granting the Defendants’ motions for summary

judgment is sufficiently meritorious to deserve our attention.4 We begin by noting that



   4
      The McCrackens also argue that the District Court abused its discretion by denying
their motion to amend and failing to issue a default judgment against the Borough of
North Wales. We review both orders for abuse of discretion. See Garvin v. City of
Philadelphia, 354 F.3d 215, 219 (3d Cir. 2003) (motion to amend); Chamberlain v.
Giampapa, 210 F.3d 154, 164 (3d Cir. 2000) (default judgment). The McCrackens’
motion to amend was granted with respect to providing names for the unknown officers
named in the original complaint. The remaining portion of the motion was designed to
allege a conspiracy relating to an insurance settlement. Other than the coincidence of
timing, the McCrackens do not allege any facts that would support the assertion of a
conspiracy. With respect to the default judgment, a delay in responding does not
necessarily require the entry of a default judgment. See Comdyne I, Inc. v. Corbin, 908
F.2d 1142, 1147-48 (3d Cir. 1990). In considering that North Wales filed its response
before the motion for a default judgment was even filed, and examining the factors in
Poulis v. State Farm Fire and Cas. Co., 747 F.3d 863, 868 (3d Cir. 1984), we conclude
that the District Court did not abuse its discretion. The remainder of the McCrackens
arguments are either related to the issue of summary judgment or are unintelligible.

                                             8
the District Court properly granted summary judgment to the municipalities whose

officers were part of the TRT’s action.

       Under Monell v. Dep’t of Social Services if City of New York, 436 U.S. 658, 694

(1978), § 1983 does not provide municipal liability under the theory of respondeat

superior. Accordingly, the McCrackens rest their claims against the municipalities on the

theory that the townships provided constitutionally inadequate training and failed to equip

the TRT with non-deadly ordnance.

       The McCrackens’ failure-to-equip claim is clearly without merit because the TRT

was equipped with non-lethal ordinance, namely the pepper spray canisters. Further,

even if the members of the TRT were inadequately equipped, there was no constitutional

violation. See Carswell v. Borough of Homestead, 381 F.3d 235, 245 (3d Cir. 2004)

(“[W]e have never recognized municipal liability for a constitutional violation because of

failure to equip police officers with non-lethal weapons.”)

       The McCrackens have also provided no evidence to support their failure-to-train

claim. All of the TRT members had been certified for the TRT and participated in

monthly trainings. (App. at 180.) Further, the McCrackens provide no argument as to

why this training regime shows “deliberate indifference to the rights of persons with

whom the police come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 389




                                             9
(1989).5 Accordingly, the municipal Defendants were entitled to judgment as a matter of

law.

                                              III.

       “[A]ll claims that law enforcement officers have used excessive force – deadly or

not – in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen

should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”

Graham v. Connor, 490 U.S. 386, 394 (1989); Rivas v. City of Passaic, 365 F.3d 181, 198

(3d Cir. 2004). However, the Fourth Amendment applies to Mrs. McCracken only if she

was the subject of a seizure. See County of Sacramento v. Lewis, 523 U.S. 833, 843-44

(1998).

       A Fourth Amendment seizure involves “a termination of freedom of movement

through means intentionally applied.” Brower v. County of Inyo, 489 U.S. 593, 596

(1989). “A seizure occurs even when an unintended person or thing is the object of the

detention or taking.” Id. However, the detention must be intentional, and “not the

accidental effect[] of otherwise lawful government” conduct. Id. at 597; see also

Childress v. City of Arapaho, 210 F.3d 1154, 1157 (10th Cir. 2000) (holding that

accidental injuries inflicted on a hostage during the course of an arrest did not constitute a

seizure). According to the Brower Court, the inquiry is not whether every consequence of



   5
    Further, as we explain below, the individual officers did not violate the Plaintiffs’
constitutional rights. Thus, any failure to train would not be “the moving force of [a]
constitutional violation” actionable under § 1983. See Polk v. Dodson, 454 U.S. 312, 326
(1981).

                                               10
the use of force was intended; rather it concluded that “[w]e think it enough for a seizure

that a person be stopped by the very instrumentality set in motion or put in place to

achieve that result.” Id. at 599.

         Mrs. McCracken was seized by the TRT when the team members threw the pepper

spray canisters into the house.6 See Logan v. City of Pullman, 392 F. Supp. 2d 1246,

1260 (E.D. Wash. 2005) (finding the intentional spraying of pepper spray into the first

floor of a building was a seizure of those located on that floor). The TRT deployed the

pepper spray canisters with the intent of temporarily debilitating any persons occupying

the home. They had knowledge that Mrs. McCracken might have been home and still

deployed the canisters. Mrs. McCracken’s freedom of movement was terminated by the

pepper spray canisters, and those canisters were the instrumentality that the TRT had

decided to use to incapacitate the occupants of the house. See In re City of Philadelphia

Litigation (Philadelphia I), 49 F.3d 945, 974 (3d Cir. 1995) (Scirica, J. concurring); see

also In re City of Philadelphia Litigation (Philadelphia II), 158 F.3d 711, 722 (3d Cir.

1998).

         In deciding whether challenged conduct constitutes excessive force, a court must

determine the objective “reasonableness” of the challenged conduct. Graham, 490 U.S. at

396. In evaluating reasonableness, a court must take into consideration the fact that

“police officers are often forced to make split-second judgments – in circumstances that

   6
     However, it does not appear that Mrs. McCracken was seized by the mere activation
of the TRT, as there was no warrant for her arrest and the TRT was not activated with the
intention of preventing her from leaving the house.

                                             11
are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in

a particular situation.” Id. at 397. Thus, the court should not apply “the 20/20 vision of

hindsight,” but should instead consider the “perspective of a reasonable officer on the

scene.” Id. at 396.

       The ultimate question in this case is whether Chief Freed’s decision to activate the

TRT and the TRT’s subsequent actions were objectively reasonable responses to the

situation.7 See Estate of Smith v. Marasco, 318 F.3d 497, 517 (3d Cir. 2003). The factors

that a court should consider in judging the reasonableness of the use of force are: 1) the

severity of the crime at issue; 2) whether the suspect poses an immediate threat to the

safety of the officer or others; 3) whether the suspect is actively resisting arrest or

attempting to evade arrest by flight; 4) the duration of the officers’ action; 5) whether the

action takes place in the context of effecting an arrest; 6) the possibility that the suspect

may be armed; 7) the number of persons with whom the police officers must contend at

one time; and 8) whether the force applied was of such an extent as to lead to injury.

Sharrar, 128 F.3d at 822.

       Considering all of the relevant facts in the light most favorable to the Plaintiffs, we

cannot say that the activation of the TRT or the use of pepper spray canisters and the

entry into the McCrackens’ home was unreasonable. Although the crimes for which the

police sought to arrest Mr. McCracken – loitering and failure to register under Megan’s

   7
    Because Mrs. McCracken was not seized until the TRT threw the pepper spray
canisters into the house, only Mr. McCracken’s Fourth Amendment rights were
implicated by Freed’s decision to activate the TRT.

                                              12
Law – were not particularly severe, the police could have reasonably believed that he

posed a threat to them or to his mother. Mr. McCracken had been convicted of a serious,

violent crime, and there were pending charges against him for possession of a firearm.

Further, Mrs. McCracken had previously filed an assault complaint against her son for

choking her. It was objectively reasonable for the TRT to conclude that Mr. McCracken

posed a threat.

       Mr. McCracken was also clearly attempting to evade arrest, and the officers

reasonably believed that he had barricaded himself in the home. When the police first

approached to take him into custody, Mr. McCracken appeared to lock the front door and

there were scraping noises as if he were barricading the front door. He did not respond to

several messages on his answering machine. Finally, he did not respond when the police

attempted to contact him later using the public address system and banging on the front

and back doors.

       Some of the other Sharrar factors are more ambiguous. The TRT had ample time

to respond to the situation, and he was only one person against numerous well-armed

police officers. However, due to his history of violence and pending weapons charge, it

was reasonable to believe that he might be armed. Further, the police were attempting to

take him into custody on the authority of two arrest warrants.

       Based on this analysis, it is clear, as a matter of law, that Chief Freed was not

unreasonable in activating the TRT, ordering the entry, or approving of the entry and use

of the pepper spray canisters. At the time the TRT was activated, the police had already


                                             13
identified themselves to Mr. McCracken. In response, Mr. McCracken locked, and made

sounds suggesting that he had barricaded, his front door. There was also the possibility

that he was holding his mother against her will in the house. By the time the TRT made

their entry, several messages had been left and TRT announcements made on the public

address system. Thus, it was objectively reasonable for the TRT to believe that the only

way that it would be able to effectuate Mr. McCracken’s arrest was through a forced

entry.

         The force used by the TRT to incapacitate the McCrackens during the TRT’s entry

was also not unreasonable. As noted, the officers reasonably believed that Mr.

McCracken posed a danger to them and, perhaps, to his mother. Even though pepper

spray is a dangerous chemical which causes severe pain and can, in some cases, lead to

serious injury, see United States v. Neill, 166 F.3d 943, 949 (9th Cir. 1999), it is not

deadly force. Further, upon being taken into custody, both Plaintiffs were immediately

offered treatment for any injuries resulting from their exposure to the pepper spray.

         Because there was no genuine issue of material fact and the individual Defendants

were entitled to judgment as a matter of law, the District Court was correct in granting

Defendants’ motions for summary judgment. Accordingly, we will affirm the judgment

of the District Court.




                                              14
