                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-2003

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Precedential or Non-Precedential: Precedential

Docket 02-1437




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PRECEDENTIAL

       Filed January 29, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 02-1437

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

v.

TROOPER JAMES MARASCO; TROOPER NICHOLAS
SCIANNA; TROOPER THOMAS WEAVER; TROOPER
ANDREW L. WENGER; CAPTAIN MICHAEL J.
MARCANTINO; LIEUTENANT BERRY REED; LIEUTENANT
EDWARDS; LIEUTENANT SCHAEFFER; LIEUTENANT
SNYDER; ROBERT JOHNSON; DANTE ORLANDI,
CORPORAL; THOMAS GREGORY HALL, CORPORAL;
TEDESCUNG L. BANDY, CORPORAL; BARRY L. BRINSER,
TROOPER; GREGORY BROADDUS, TROOPER;
CARBONELL, TROOPER; COLON, CORPORAL; JOHN R.
COMERER, JR., CORPORAL; GLENN C. DOMAN,
CORPORAL; JOHN EDWARDS, TROOPER; WAYNE S.
ELSER, CORPORAL; FRANK L. FETTEROLF,
LIEUTENANT; DAVID FRISK, CORPORAL; GILLISON,
CORPORAL; JAMES A. HAMILL, CORPORAL; MARTIN L.
HENRY, III, CORPORAL; JOSEPH KALIS, TROOPER; A. J.
KRAWCZEL, CORPORAL; WILLIAM J. MCCLURE,
TROOPER; THOMAS MCDANIEL, SERGEANT; SHAWN
MELL, TROOPER; ARTHUR MOSS, JR., TROOPER;
WILLIAM MOYER, TROOPER; ED MURPHY, TROOPER;




KEVIN REICHERT, CORPORAL; CHARLES RODGERS,
SERGEANT; MERVIN RODRIQUEZ, CORPORAL; THOMAS
RODRIQUEZ, TROOPER; KEITH A. STONE, TROOPER;
GREGORY STUMPO, TROOPER; DOMINIC G. VISCONTI,
TROOPER; WILLIAM WHITE, CORPORAL; JOSEPH
WILSON, CORPORAL; GREGORY WIRTH, TROOPER;
MICHAEL WITMER, CORPORAL; KENNETH YODER,
CORPORAL; JOHN DOE #1-25, WHOSE NAMES ARE
CURRENTLY UNKNOWN

Estate of Robert Cecil Smith;
Pauline Smith; Dana Smith;
Wanda Smith,
       Appellants

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civ. No. 00-CV-5485)
Honorable Franklin S. Van Antwerpen, District Judge
Argued November 7, 2002

BEFORE: MCKEE and GREENBERG, Circuit Judges,
and LIFLAND, District Judge*

(Filed: January 29, 2003)

       Jordan B. Yeager (argued)
       Boockvar & Yeager
       714 Main Street
       Bethlehem, PA 18018

        Attorneys for Appellants
________________________________________________________________

* Honorable John C. Lifland, Senior Judge of the United States District
Court for the District of New Jersey, sitting by designation.

                                  2


       D. Michael Fisher
       Attorney General
       J. Bart DeLone (argued)
       Senior Deputy Attorney General
       Calvin R. Koons
       Senior Deputy Attorney General
       John G. Knorr, III
       Chief Deputy Attorney General
       Chief, Appellate Litigation Section
       Office of Attorney General
       15th Fl., Strawberry Square
       Appellate Litigation Section
       Harrisburg, PA 17120

        Attorneys for Appellees

OPINION OF THE COURT

GREENBERG, Circuit Judge:

This matter comes on before this court on an appeal by
the plaintiffs, the Estate of Robert Smith, Pauline Smith,
Dana Smith, and Wanda Smith, to whom we refer
collectively as the "Smiths," from the district court’s order
entered January 14, 2002, granting summary judgment in
favor of the defendants, 46 specifically named and 25 John
Doe employees of the Pennsylvania State Police. The Smiths
also appeal from the district court’s orders of September
17, 2001, October 12, 2001, November 15, 2001, and
November 30, 2001, to the extent that they denied their
requests to take additional depositions and to extend the
time for discovery. For the reasons stated herein, we will
affirm in part and reverse in part the district court’s order
granting summary judgment and will affirm its discovery
orders without prejudice to the Smiths seeking to reopen
discovery on the remand we are ordering.

I. BACKGROUND
Decedent Robert Smith, a former police officer and
Vietnam veteran, suffered from various medical problems,
including Post-Traumatic Stress Disorder ("PTSD") and

                                3


coronary heart disease. Several members of the state police
were familiar with Smith, largely as a result of ongoing
problems between Smith and his neighbor, Michael Shafer.
Prior to the events giving rise to this litigation members of
Troop L of the state police had investigated a number of
complaints Shafer and Smith had lodged against each
other. Smith also had complained numerous times about
the conduct of Troop L members, and the state police at
one point had charged Smith with making false reports to
law enforcement and harassment. The Smiths allege that
through these contacts the state police came to know that
Smith was in fragile physical and mental health, had a
major heart condition, had undergone knee replacement
surgery, suffered from hypertension, recently had been
hospitalized, and was required to be free from stressful
situations and to take medication. Several troopers stated
in their depositions, and police event logs confirm, that
certain troopers were aware that Smith suffered from PTSD
and experienced flashbacks.

The events directly resulting in this litigation started on
July 10, 1999, when, in response to a complaint by Shafer,
Troopers James Marasco and Nicholas Scianna of Troop L
went to Smith’s residence at approximately 10:30 p.m.1
Marasco responded to Shafer’s complaint even though
Smith’s residence was outside his assigned geographic
patrol area. The troopers did not have an arrest warrant or
a search warrant. In an attempt to contact Smith, they
repeatedly knocked on his door, but he did not respond.
They then called the barracks and spoke to Corporal
Mervin Rodriguez ("M. Rodriguez") who advised them to
have the residence telephoned and to leave if there was no
answer. The call was made but was not answered. Marasco
and Scianna, however, did not leave, but instead went to
the back of the house searching for Smith.2
_________________________________________________________________

1. There are contradictions in the record as to the nature of Shafer’s
complaint. One account suggests that officers went to Smith’s residence
to investigate Shafer’s complaint that his lights had been shot out, while
written reports suggest that they went there to investigate a complaint
that a light from Smith’s property was shining on Shafer’s property.

2. The parties dispute whether the troopers proceeded to the back of the
house while the call was being made to Smith’s residence or after
learning that no one answered the call.

                                4


Scianna testified that while in the back of the house he
observed a small red light in a window and thought that
Smith might be videotaping the officers. Marasco testified
that he saw the light on Scianna’s body, and written
reports state that the troopers believed that Smith was
directing a laser-sighted firearm at Scianna.3 The Smiths
dispute this account, noting that the troopers never saw a
firearm. Moreover, the Smiths point to contradictory
statements concerning where on Scianna’s body they
allegedly saw the red light, the location of the officers when
they first saw the light, and whether the light was
emanating from Smith’s or Shafer’s home. In any event, the
officers retreated and called for back-up assistance. M.
Rodriguez and Trooper Thomas Rodriguez ("T. Rodriguez")
responded and unsuccessfully attempted to communicate
with Smith over a police vehicle’s public address system
and by telephone. M. Rodriguez then called state police
Lieutenant Fetterolf to request assistance from the state
police’s Special Emergency Response Team ("SERT").
Fetterolf agreed and contacted Corporal Hall of SERT, who,
with Captain Torkar, activated SERT.

Fetterolf testified that at the time he agreed to activate
SERT, he considered the scenario to be a "barricaded
gunman" situation. He also testified, however, that the
circumstances did not lead him to believe that a gun might
be involved, or even that someone was barricaded in
Smith’s home. Hall testified that SERT should not have
been activated unless officers had prepared or were in the
process of preparing a warrant, or if there were exigent
circumstances. Nevertheless the state police activated SERT
before they made the decision to obtain a warrant even
though, in Hall’s opinion, exigent circumstances did not
exist.

Before SERT arrived, several officers began to establish a
perimeter around Smith’s residence. M. Rodriguez testified
that at some point he and T. Rodriguez saw an individual
they believed to be Smith walk from the residence to a shed
in the backyard. The individual did not respond to their
calls and they did not identify him positively as Smith.
_________________________________________________________________

3. There was extensive deposition testimony in this case.

                                5


SERT responded with a negotiation team and a tactical
team. It appears that at least 30 SERT members wearing
riot gear and camouflage and armed with various weapons
were present. Sharpshooters targeted firearms at the house,
a helicopter hovered overhead, and the state police would
not allow anyone, even family members, to come or go to
the premises without police permission. SERT
unsuccessfully attempted to contact Smith by telephone
and over the PA system. Smith, however, did contact his
daughter Dana on the telephone, telling her that there were
state troopers outside his house. Dana later advised the
state police Personal Communications Officer ("PCO") of
this call.
In the early morning of July 11, 1999, Trooper Weaver,
the on-duty criminal investigator, filed criminal charges of
aggravated assault, simple assault, and recklessly
endangering a person against Smith and obtained a
warrant for his arrest. Moreover, Trooper Andrew Wenger
obtained a search warrant for Smith’s premises. According
to the Smiths, SERT rejected offers from family, friends,
and neighbors to attempt to communicate with Smith and
prevented Chris Zwicky, a neighbor familiar with the woods
near Smith’s house, from searching for Smith. They also
chose not to record a message from anyone close to Smith,
despite having technology to do so, and decided not to
utilize Dana Smith as a mediator, despite her having
received a call from Smith asking her to do so. Finally,
SERT rejected the use of a psychologist.

SERT then entered and cleared the house and the shed
in the backyard using rocks, tear gas, and "flash bang"
distraction devices. Nevertheless the police did not find
anyone in either structure. They did, however, recover eight
weapons including handguns with scopes, though none had
a laser sight. The officers also found a video cassette and a
camcorder, which they seized after obtaining a warrant, as
well as Smith’s wallet, identification, cash, credit cards,
keys, false teeth and medication he was required to take by
reason of recently having had triple bypass surgery. After
learning that Smith had a hunting hideout in the woods,
SERT searched the wooded area adjacent to Smith’s
residence with Zwicky’s aid.4 Having failed to locate Smith,
_________________________________________________________________

4. The Smiths proffer evidence suggesting that a number of SERT
members already had left the scene and were called back only when

                                6


the officers called off the search and, around midday on
July 11, 1999, left the scene.

On July 12, 1999, the complaint against Smith was
withdrawn. That same day, Smith’s brother filed a missing
persons report because Smith had not returned home. The
parties dispute the nature of the search effort over the next
days. The defendants presented records indicating that
Marasco and Corporal Elser conducted a foot search for
Smith on July 14, 1999; that Corporal Schell conducted an
aerial search in a state police helicopter and interviewed
neighbors; that Wenger inquired into Smith’s cell phone
records to determine if the phone had been used; that, on
July 15, 1999, Elser contacted the Lebanon Veterans
Administration Hospital in an effort to locate Smith; and
that, on July 16, 1999, members of the state police
searched the wooded area behind the Smith residence,
describing that area as impenetrable, though they
eventually found Smith’s cell phone.

On the other hand, the Smiths proffer evidence indicating
that the police did not treat Smith like an armed fugitive or
missing person by, for example, conducting a house-to-
house inquiry or a sustained search, trying to contact
family or friends, or checking with local hospitals or
commercial establishments. They also proffer expert
testimony suggesting that the officers’ conduct in the days
following the incident, as well as during the incident itself,
fell below accepted standards of police practice. They note
that, according to police records, the July 14, 1999 search
lasted only 35 minutes and extended only 4 to 5 feet into
the woods, that the police failed to use any maps,
diagrams, photos, or compass during their July 16, 1999
search, and that the police rejected requests by family and
friends to use available search dogs.

The Smiths also suggest that police actually located
Smith’s cell phone earlier than July 16, 1999, pointing to
_________________________________________________________________

Zwicky, who was confident that he could find Smith, insisted that they
search for Smith. The Smiths also suggest that SERT failed to use a grid
or to map the area in any way, and that SERT simply gave up on the
search after checking Smith’s hunting hideout.

                                7


Smith’s brother’s testimony to the effect that Weaver
mentioned finding the phone on July 13, 1999. They assert
that the police hid this discovery, as well as the discovery
of Smith’s body at some point prior to July 18, 1999. They
proffer evidence suggesting that police on July 11, 1999,
were in the part of the woods where Smith’s body later was
found; that the police helicopter, which was equipped with
heat sensors designed to locate bodies, hovered above this
spot for an extended period of time; that police were
searching that location at the same time Smith’s cell phone
received an incoming call; and that clippings of brush cut
back by police were found within ten to 15 yards of Smith’s
body. Furthermore, they submit that if the police did not
recover the phone until July 16, 1999, there is no way they
could have failed to smell the odor of Smith’s decomposing
corpse, which later was found only ten to 15 yards from the
place where they recovered the phone. Id. Forensic
pathologist Sanford Edberg stated in his report that a
person should have been able to notice the smell and the
buzz of flies within one day from a distance of ten to 20
yards.

On July 18, 1999, Smith’s friend, Alan Achey, found
Smith’s severely decomposed body in a wooded area
approximately 200 yards from Smith’s home. Edberg
estimated that Smith died sometime between 11:50 a.m.
and 11 p.m. on July 11, 1999, and concluded that, given
Smith’s medical condition, the stress of the incident
probably led to a fatal heart attack.

The Smiths brought this action in the district court
pursuant to 42 U.S.C. S 1983, alleging that the defendants
violated Smith’s rights under the First, Fourth, and
Fourteenth Amendments. The Smiths also included
wrongful death, survival and intentional infliction of
emotional distress claims under state law. After extensive
discovery proceedings, the defendants moved for summary
judgment on July 27, 2001, both on the merits and on the
basis of qualified immunity. On September 17, 2001, the
district court granted the Smiths’ motion to extend
discovery pursuant to Fed. R. Civ. P. 56(f), but on October
12, 2001, the district court denied the Smiths’ appeal from
an order of the magistrate judge denying their request to

                                8


take more than ten depositions, a limitation the magistrate
judge earlier had imposed. On November 15, 2001, the
district court denied the Smiths’ renewed motion to take
additional depositions and for an extension of time for
discovery and then, on November 30, 2001, denied the
Smiths’ renewed Rule 56(f) motion. On January 14, 2001,
the district court again denied the Smiths’ renewed motions
to take additional depositions and to extend discovery,
granted the defendants’ motion for summary judgment on
all section 1983 claims on the merits mentioning, but not
predicating its decision on, the qualified immunity
arguments. The court dismissed the state law claims
without prejudice. This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

A. JURISDICTION

The district court had jurisdiction pursuant to 28 U.S.C.
SS 1331, 1343, and 1367 in that the complaint alleged
federal civil rights claims under 42 U.S.C. S 1983 and
supplemental state law claims. On January 14, 2002, the
district court entered final judgment in the case, and on
February 8, 2002, the Smiths timely filed their notice of
appeal. We therefore have jurisdiction pursuant to 28
U.S.C. S 1291.

B. STANDARD OF REVIEW

We exercise de novo review of the district court’s grant of
summary judgment. See Kneipp v. Tedder, 95 F.3d 1199,
1204 (3d Cir. 1999). We review questions concerning the
scope of discovery for abuse of discretion. See Brumfield v.
Sanders, 232 F.3d 376, 380 (3d Cir. 2000).

III. DISCUSSION

A. SUMMARY JUDGMENT ORDER

42 U.S.C. S 1983 provides:

       Every person who, under color of any statute,
       ordinance, regulation, custom, or usage, of any State
       or Territory or the District of Columbia, subjects, or
       causes to be subjected, any citizen of the United States

                                9
       or other person within the jurisdiction thereof to the
       deprivation of any rights, privileges, or immunities
       secured by the Constitution and laws, shall be liable to
       the party injured in an action at law, suit in equity, or
       other proper proceeding for redress . . . .

Notwithstanding its broad language section 1983 does not
create substantive rights; rather it merely provides a
remedy for deprivations of rights established elsewhere in
the Constitution or federal laws. Kneipp, 95 F.3d at 1204.
Thus, the initial question in a section 1983 action is
" ‘whether the plaintiff has alleged a deprivation of a
constitutional right at all.’ " Donahue v. Gavin, 280 F.3d
371, 378 (3d Cir. 2002) (quoting County of Sacramento v.
Lewis, 523 U.S. 833, 841 n.5, 118 S. Ct. 1708, 1714 n.5
(1998)).5

The Smiths alleged that the defendants violated Smith’s
rights to substantive due process under the Fourteenth
Amendment both under the "state-created danger" doctrine
and by engaging in a cover-up. They further alleged that
the defendants violated Smith’s rights to be free from the
use of excessive force, unreasonable searches and seizures,
and malicious prosecution under the Fourth Amendment.
Finally, the Smiths alleged that the defendants violated
Smith’s rights under the First Amendment by retaliating
against him for complaints he had made concerning prior
contacts with the state police officers. In a comprehensive
opinion the district court found that, as a matter of law, the
Smiths could not show that Smith had suffered any
deprivation of a constitutional right and thus the court
entered summary judgment in favor of the defendants.

1. Substantive Due Process Claims

The Smiths advance two substantive due process
_________________________________________________________________

5. While Donahue was concerned with an appeal in a case in which the
defendants had obtained summary judgment on the basis of absolute or
qualified immunity, obviously we should make the same inquiry even
though the district court did not decide the case on the basis of the
defendants having qualified immunity. We note, however, that the
defendants have advanced their claim to qualified immunity on this
appeal as an alternative basis to affirm the order for summary judgment.

                                10


theories: (1) state-created danger; and (2) cover-up and
mishandling of Smith’s corpse.

       a. State-Created Danger Doctrine

In Kneipp v. Tedder, we recognized the state-created
danger theory of section 1983 liability, holding that a
plaintiff must prove four elements: (1) the harm ultimately
caused was foreseeable and fairly direct; (2) the state actor
acted in willful disregard for the safety of the plaintiff; (3)
there existed some relationship between the state and the
plaintiff; and (4) the state actors used their authority to
create an opportunity that otherwise would not have
existed for the third party’s crime to occur. Kneipp, 95 F.3d
at 1208 (citing Mark v. Borough of Hatboro, 51 F.3d 1137,
1152 (3d Cir. 1995)). The fourth element’s reference to a
"third party’s crime" arises from the doctrine’s origin as an
exception to the general rule that the state does not have a
general affirmative obligation to protect its citizens from the
violent acts of private individuals. See Kneipp , 95 F.3d at
1208. The courts, however, have not limited the doctrine to
cases where third parties caused the harm as Kneipp itself
demonstrates. In that case, a police officer stopped a visibly
intoxicated husband and wife, Joseph and Samantha
Kneipp, for allegedly causing a disturbance. Kneipp, 95
F.3d at 1201. When the officer allowed Joseph to go home
to relieve the babysitter watching his son, Joseph assumed
that the police would take Samantha, whose blood alcohol
level later was estimated at .25%, either to the hospital or
to the police station. Id. at 1201-02 & n.4. The officer,
however, eventually sent Samantha home alone, and she
was found later that night unconscious at the bottom of an
embankment next to a parking lot across the street from
the Kneipps’ home. Id. As a result of her exposure to the
cold, she suffered hypothermia, which caused a condition
known as anoxia, which in turn resulted in permanent
brain damage impairing many basic body functions. Id. The
Kneipps instituted a district court action against the police
officers who obtained a summary judgment. The Kneipps
appealed and we reversed and remanded the case for trial.
Id. at 1213-14.

Although Kneipp provides the framework for evaluating a
state-created danger claim, recent cases have refined

                                11


certain elements of the four-part test we set forth above.
First, in County of Sacramento v. Lewis, the Supreme Court
held that an officer’s "deliberate indifference" or "reckless
disregard" alone would not lead to liability for violating
substantive due process rights in a pursuit case; liability
attaches only to conduct that "shocks the conscience." 523
U.S. at 845-47, 118 S.Ct. at 1716-17. In Miller v. City of
Philadelphia, building on County of Sacramento v. Lewis
and other Supreme Court cases, we suggested that the
"shocks the conscience" standard was applicable to all
substantive due process cases. Miller, 174 F.3d 368, 374-
75 (3d Cir. 1999). Second, in Morse v. Lower Merion School
District, we refined the third and fourth prongs of the state-
created danger test. Morse, 132 F.3d 902 (3d Cir. 1997). In
Morse we held that the third requirement--a relationship
between the state and the plaintiff--ultimately depends on
whether the plaintiff was a foreseeable victim, either
individually or as part of a discrete class of foreseeable
victims. Id. at 914. Furthermore, we clarified that, with
respect to the fourth element--creating the opportunity for
harm--"the dispositive factor appears to be whether the
state has in some way placed the plaintiff in a dangerous
position that was foreseeable, and not whether the act was
more appropriately characterized as an affirmative act or an
omission." Id. at 915.

Here, analyzing the first element--foreseeable and fairly
direct harm--the district court concluded that the officers,
even with knowledge of Smith’s poor health, as a matter of
law could not have foreseen that he would flee from the
house and as a consequence suffer a heart attack in the
woods. App. at 50. But we believe that this conclusion
ignores evidence that, if believed, could lead a jury to
conclude that Smith suffered foreseeable harm. To start
with, the official incident report states that it was the
officers’ purpose to make Smith appear, and once officers
believed they had seen Smith moving from the house to the
shed, Marasco and M. Rodriguez "moved into a position . . .
to block [Smith’s] return to the residence if attempted." Id.
at 548. Moreover, as noted above, at least some of the
officers on the scene were aware of Smiths’ mental and
physical condition, including his tendency to have
flashbacks to his service in Vietnam under stressful

                                12


situations, and, once the search of the residence was
conducted, at least some officers were aware that Smith
had fled without his necessary medication. In this regard
the Smiths’ pathology expert stated that "a person such as
Smith, suffering from post traumatic stress disorder would
have been greatly alarmed by the arrival of police with a
helicopter and the assault on his residence with bright
lights, breaking windows with rocks, flash bang distraction
devices and tear gas, all of which caused him to flee the
house and hide in the woods where the stress of these
police-induced actions caused a fatal heart attack." Id. at
2378-79. The Smiths also proffer the expert testimony of
Dr. McCauley, a police practices expert, who opined that a
"reasonably trained police officer would have reasonably
concluded that injury or death to Smith was a reasonably
foreseeable consequence of Smith’s mental and medical
conditions, especially knowing he was without his
medication." Id. at 2343.

When we consider this evidence and draw all reasonable
inferences in the Smiths’ favor, we conclude that the
district court erred in determining that a jury could not find
that Smith’s harm was foreseeable. As in Kneipp , a jury
could find that "[t]he affirmative acts of the police officers
here created a dangerous situation, requiring that they take
additional measures to ensure [the plaintiff ’s] safety,"
especially where police "intervened to cut off[the plaintiff ’s]
private source of protection." Kneipp, 95 F.3d at 1210.

This case is not like Morse, in which a daycare operator
was not liable for leaving the rear entrance of a school
open, thereby allowing an individual with a history of
mental illness to enter and kill a teacher. In Morse, we held
that harm to the teacher was not foreseeable, largely
because the defendants were unaware that any mentally
deranged person might be waiting outside the building.
Morse, 132 F.3d at 910. We realize that the number of
officers aware of Smith’s mental and physical condition and
failure to bring proper medication when he fled is unclear.
Nevertheless, the Smiths have presented sufficient evidence
to allow a jury to find that at least some of the officers were
aware of Smith’s condition and should have foreseen that
he might flee and suffer adverse medical consequences
when SERT was activated.

                                13


With respect to the second element in a state-created
danger claim--conscience-shocking conduct--the district
court found that neither the decision to confront an
individual suffering from PTSD with officers dressed in
fatigues, a helicopter, and weapons nor the officers’ alleged
failure to conduct a fully thorough search shocked the
conscience. App. at 52-54. The district court failed to
recognize, however, that, as we noted in Miller , the precise
degree of wrongfulness required to reach the conscience-
shocking level depends on the circumstances of a particular
case. Miller, 174 F.3d at 375. As we indicated in United
Artists Theatre Circuit, Inc. v. Township of Warrington, No.
01-3533, slip op. at 11, 2003 WL 115585, at * (3d Cir. Jan.
14, 2003), since County of Sacramento v. Lewis , "our cases
have repeatedly acknowledged . . . that the meaning of [the
shocks the conscience] standard varies depending on the
factual context." Cf. Brown v. Commonwealth of Pa. Dep’t of
Health, No. 01-3234, slip op. at 11, 2003 WL 148919, at *6
(3d Cir. Jan. 22, 2003) (shocks the conscience standard
"applies to the actions of emergency medical personnel").
For example, in the custodial situation of a prison, where
forethought about an inmate’s welfare is possible,
deliberate indifference to a prisoner’s medical needs may be
sufficiently shocking, while "[a] much higher fault standard
is proper when a government official is acting
instantaneously and making pressured decisions without
the ability to fully consider the risks." Miller, 174 F.3d at
375.

In cases involving a "hyperpressurized environment,"
such as a prison riot or a high-speed chase, liability
normally will attach only where a "purpose to cause harm"
is demonstrated. Id. In Miller itself, we held that a social
worker acting to separate a parent and child was operating
in an environment somewhere between the prison
riot/high-speed chase scenario and the custodial situation,
and that conscience-shocking conduct could be established
by a showing of more than negligence or deliberate
indifference, but less than a purpose to cause harm. Id. The
plaintiffs in that case therefore had to show "a level of gross
negligence or arbitrariness that indeed ‘shocks the
conscience.’ " Id. at 375-76.

                                14


In this case, the officers were confronted with what
Fetterolf described as a "barricaded gunman" situation.
This case, however, did not involve the "hyperpressurized
environment" of an in-progress prison riot or a high-speed
chase. See Miller, 174 F.3d at 375. Indeed, the official
incident report shows that at least one hour passed
between the time Marasco and Scianna approached Smith’s
residence and the time Fetterolf authorized a request to
activate SERT. During that time no shots were fired and the
officers did not see a firearm brandished. Moreover, at least
after the police arrived at the Smith residence, the police
had no reason to be concerned about the safety of third
parties. Thus, this case does not involve a
"hyperpressurized environment" such that the Smiths to
recover would have to demonstrate that the defendants had
an actual purpose to cause harm.

At the same time, however, this case is not one in which
the police had "the luxury of proceeding in a deliberate
fashion, as prison medical officials can." Miller, 174 F.3d at
375. Because the urgency and timing involved in this case
is more like the situation in Miller, the Smiths here must
demonstrate "a level of gross negligence or arbitrariness
that indeed ‘shocks the conscience.’ " Id. at 375-76. We
think based on our reading of the precedents in this elusive
area of the law that, except in those cases involving either
true split-second decisions or, on the other end of the
spectrum, those in which officials have the luxury of
relaxed deliberation, an official’s conduct may create state-
created danger liability if it exhibits a level of gross
negligence or arbitrariness that shocks the conscience.

The Smiths have produced sufficient evidence to allow a
reasonable jury to conclude that the officers’ conduct both
with regard to activating SERT and with regard to searching
of the woods shocked the conscience. In addition to the
evidence already discussed, the Smiths proffer the expert
opinion of Dr. McCauley, who suggests that the officers’
conduct fell significantly below accepted professional
standards for dealing with emotionally disturbed persons,
stating in particular that "[h]ad the officers acted in
accordance with accepted police training and practices in
dealing with [emotionally disturbed persons], it is more

                                15


likely than not that the harm/death suffered by[Smith]
would have been avoided," and that police inappropriately
assumed "a rigid enforcement role, which aggravated and
escalated the tenor of the situation." J.A. at 2337.

Furthermore, the Smiths have amassed evidence calling
into question the adequacy of the search efforts and the
motives behind the numerous decisions that cut Smith off
from private sources of potential aid. Although it is true
that the officers in this case, unlike the officer in Kneipp,
did not, as the district court noted, completely abandon the
situation or totally cut off all outside help, we are unwilling
to adopt the position that their efforts to mitigate a danger
that they allegedly created necessarily insulate them from
liability. If the Smiths can prove that the officers’ efforts
were so minimal as to constitute gross negligence or
arbitrariness that shocks the conscience, then the second
prong of the Kneipp test will be met. In this case, the
district court should not have determined as a matter of
law that the officers’ efforts were adequate where questions
of fact remain as to what they could have and should have
done to confront a known emotionally disturbed person and
to conduct a proper search for that person after he was
flushed from his home.

It appears to be undisputed that the third prong of the
Kneipp state created danger test--a relationship between
the plaintiff and the state--has been met here. In any
event, as in Kneipp, the defendants here,"exercising [their]
powers as . . . police officer[s] . . . . exerted sufficient
control" over Smith to meet the relationship requirement.
See Kneipp, 95 F.3d at 1209.

To meet the fourth prong of the test the Smiths must
demonstrate that the officers "used their authority to create
an opportunity that otherwise would not have existed" for
harm to befall Smith. See Kneipp, 95 F.3d at 1209. A
reasonable jury could conclude that the decisions to
activate SERT against someone in Smith’s physical and
mental condition, flush Smith from his home, confine him
to the densely wooded area, block his route of return, reject
the use of search dogs, not allow family or friends to
communicate with him over the PA system, and search only
a short distance into the woods after observing that Smith

                                16


was without his wallet, identification, cash, credit cards,
keys, and medication, among other actions, created just
such an opportunity.6 As in Kneipp, it is "conceivable that,
but for the intervention of the police," which arguably put
the victim there in a "worse position" and increased her risk
of danger, Smith would have returned home on his own or
with the encouragement of his family or friends. Id. at
1209.

The district court found that this element could not be
proven because the officers employed legitimate tactics.
App. at 53. This conclusion both usurps the role of the jury
as the Smiths have presented substantial evidence calling
into question the officers’ motives and tactics and
misapplies the fourth prong of the Kneipp test, which asks
only whether, but for the defendants’ actions, the plaintiff
would have been in a less harmful position. Evidence of the
legitimacy of the tactics used by the troopers may be
relevant to the "shocks the conscience" prong, but it says
little about whether such tactics increased the risk to
Smith. The Smiths have produced sufficient evidence to
allow a reasonable jury to find that the troopers placed
Smith in a foreseeably dangerous position.

Inasmuch as we have concluded that a reasonable jury
could find that there was a constitutional violation in this
case, we turn to the question of whether the defendants
knew or should have known that their actions were clearly
unlawful as they advanced a qualified immunity defense in
the district court and do so on this appeal. Officials are
entitled to immunity unless "the law clearly proscribed the
actions" they took. Mitchell v. Forthsythe , 472 U.S. 511,
528, 105 S.Ct. 2806, 2816 (1985). "[G]overnment officials
performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional
_________________________________________________________________

6. We are not suggesting that a jury would have to reach that result.
Indeed, we certainly understand why the police wanted to keep third
parties away from Smith’s premises as the police could have believed
that their safety would have been jeopardized by their intervention.
Obviously, we are not suggesting that evidence along these lines would
not be admissible at trial.

                                17


rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,
2738 (1982).

In considering the qualified immunity defense we first
observe that we delineated the elements of a state-created
danger claim in Mark v. Borough of Hatboro, 51 F.3d at
1152-53, and more clearly adopted the theory and defined
its contours the following year in Kneipp. Thus, the right at
issue in this case was clearly established at the time the
incident occurred. A plaintiff, however, must show more to
survive a motion for summary judgment predicated on a
qualified immunity defense. "The contours of the right must
be sufficiently clear that a reasonable official would
understand that what he is doing violates that right."
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,
3039 (1987). Moreover, in a multi-defendant case the
district court should "analyze the specific conduct of each
. . . Defendant with respect to the constitutional right at
issue." Grant v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir.
1996) (emphasis in original).

Inasmuch as the district court did not reach the qualified
immunity question, and in recognition that the record is
unclear as to the relationship between each defendant’s
specific conduct and the rights at issue, we find it
appropriate to remand the qualified immunity issue to
allow the district court to make the necessary factual
determinations with respect to qualified immunity in the
first instance. See id. at 122-23 ("[C]rucial to the resolution
of any assertion of qualified immunity is a careful
examination of the record (preferably by the district court)
to establish, for purposes of summary judgment, a detailed
factual description of the actions of each individual
defendant (viewed in a light most favorable to the plaintiff).
. . . We think that the district court . . . is in a far better
position than we are to review the record for evidence as to
the specific conduct of each of the . . . Defendants."); see
also Brown v. United States, 851 F.2d 615, 620 (3d Cir.
1988) ("[A]lthough it is within our power to do so, it would
be inappropriate for us to decide this question on appeal,
even if the record provided a sufficient basis for its
resolution.").

                                18


       b. Alleged Cover-Up and Mishandling of Smith’s Corpse

Cover-ups that prevent a person who has been wronged
from vindicating his rights violate the right of access to the
courts protected by the substantive due process clause.
Swekel v. City of River Rouge, 119 F.3d 1259, 1261-64 (6th
Cir. 1997); Bell v. City of Milwaukee, 746 F.2d 1205, 1253-
58 (7th Cir. 1984); Ryland v. Shapiro, 708 F.2d 967, 97-75
(5th Cir. 1983); see also Wolff v. McDonnell, 418 U.S. 539,
579, 94 S.Ct. 2963, 2986 (1974) ("The right of access to the
courts . . . is founded in the Due Process Clause and
assures that no person will be denied the opportunity to
present to the judiciary allegations concerning violations of
fundamental constitutional rights."). "[I]f state officials
wrongfully and intentionally conceal information crucial to
a person’s ability to obtain redress through the courts, and
do so for the purpose of frustrating that right, and that
concealment and the delay engendered by it substantially
reduce the likelihood of one’s obtaining the relief to which
one is otherwise entitled, they may have committed a
constitutional violation." Swekel, 119 F.3d at 1262-63
(citing Ryland, 708 F.2d at 969-70).

Notwithstanding the broad formulation of the principle
that a state officer’s cover-up may create constitutional
liability, in practice the courts have been cautious in
allowing liability to be imposed on that basis. Thus, a
plaintiff typically cannot recover for any cover-ups or
discovery abuses after an action has been filed inasmuch
as the trial court can deal with such situations in the
ongoing action. In fact, if alleged cover-ups in the course of
litigation are regarded as actionable under section 1983 it
is foreseeable that an initial civil rights action, or indeed
any action against a state or local government or its
officers, will be only the first in a series of such cases.
Thus, only prefiling conduct that either prevents a plaintiff
from filing suit or renders the plaintiff ’s access to the court
ineffective or meaningless constitutes a constitutional
violation. Id. at 1261-64; see also Foster v. City of Lake
Jackson, 28 F.3d 425, 430 (5th Cir. 1994) (suggesting that
the right of access to the courts encompasses "a right to file
an action, but not the right to proceed free of discovery
abuses after filing").

                                19


The Smiths point out that the police refused to return
Smith’s answering machine tapes after they dropped the
charges against him and that when they returned the tapes
they did not contain any of the officers’ voices, despite the
fact that police records show that officers left numerous
messages during the incident. They suggest that the
defendants either have withheld tapes containing their
voices, or altered tapes to erase their voices. Furthermore,
the Smiths point to a note in an internal police record
referring to concerns about "possible civil litigation" to
suggest that the defendants tampered with the tapes for the
purpose of impeding the Smiths from pursuing their rights.
App. at 561. Finally, the Smiths rely on the evidence
summarized above suggesting that the police came into
contact with Smith’s body earlier than reported and that
their refusal to use search dogs prevented a more definitive
autopsy by allowing the body to decompose.

Even if the Smiths can prove that the defendants
attempted to effectuate a cover-up, they have not made a
showing that the defendants’ efforts either prevented the
Smiths from filing suit or rendered their access to the
courts ineffective or meaningless. Nor have the Smiths
provided support for their contention that a more complete
autopsy could have revealed more helpful information than
was obtained from the autopsy conducted which, when
coupled with their expert testimony, supplied a basis for a
jury to attribute Smith’s death to defendants’ conduct.
Furthermore, the Smiths raised the issue of potentially
altered tapes in the district court which thus was in a
position to address their concerns.

In any event, the Smiths were able to bring this action
and present substantial evidence of central importance to
their case. As a result, even assuming that they have
proffered sufficient evidence for a jury to conclude that
there was a cover-up, the alleged conduct did not prevent
them from filing suit or render their access to the courts
ineffective or meaningless. Indeed, this very opinion
demonstrates that the Smiths have been able to develop the
facts in this case quite effectively. Overall, we are satisfied
that neither their cover-up and mishandling theories can
support a substantive due process claim.

                                20


2. First Amendment Retaliation Claim

To prove that the defendants violated Smith’s First
Amendment rights by retaliating against him for filing
complaints, the Smiths must show: (1) that Smith engaged
in protected activity; (2) that the government responded
with retaliation; and (3) that the protected activity was the
cause of the retaliation. See Anderson v. Davila , 125 F.3d
148, 161 (3d Cir. 1997). The district court properly
concluded that the Smiths provided insufficient evidence of
a causal link to survive summary judgment.

We first consider the timing of the alleged retaliation
remembering that "[e]ven if timing alone could ever be
sufficient to establish a causal link, . . . the timing of the
alleged retaliatory action must be ‘unusually suggestive’ of
retaliatory motive before a causal link will be inferred."
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir.
1997). Thus, in recognition of that principle, we have held
that such an inference could be drawn where two days
passed between the protected activity and the alleged
retaliation, see Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d
Cir. 1989), but not where 19 months had elapsed, see
Krouse, 126 F.3d at 503. Smith lodged all his complaints
between 1991 and 1998 so that the timing of the alleged
retaliatory action, which started on July 10, 1999, is not
unusually suggestive of retaliatory motive.

We have recognized, however, that "timing plus other
evidence may be an appropriate test where the temporal
proximity is not so close as to be ‘unduly suggestive.’ "
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir.
2000). But the Smiths have not offered other evidence in
support of their retaliation claim, suggesting merely that,
drawing all inferences in their favor, the officers’ targeting
of Smith on July 10, 1999, and the force with which they
acted could convince a reasonable jury of the causal link.
This suggestion, however, does not constitute affirmative
evidence. Although it is undisputed that a number of the
officers were aware of Smith’s complaints, there is no
evidence to suggest that an intent to retaliate against him
caused or contributed to the events of July 10, 1999. In
fact, the officers went to Smith’s premises on that day in

                                21


response to a complaint by Shafer rather than on their own
initiative.

We also point out that a court in considering a First
Amendment retaliation claim against a police officer should
be cautious in allowing it to proceed to trial in the face of
the officer’s summary judgment motion. In this regard we
observe that officers should not by reason of potential civil
liability be discouraged from intervening when their services
are needed by the not surprising circumstance that a claim
has been lodged against a person with whom they have had
previous adverse dealings. Society may pay a high price if
officers do not take action when they should do so. We
therefore will affirm the district court’s judgment as to this
claim.

3. Fourth Amendment Claims

The Smiths predicate their Fourth Amendment argument
on four theories: (1) use of excessive force; (2) unreasonable
seizure; (3) unreasonable search; (4) malicious prosecution.

       a. The Red Dot and Probable Cause

The Smiths’ assertion that there remains a genuine issue
of material fact as to whether Marasco and Scianna
actually saw a red light and believed that that light might
be emanating from a laser-sighted weapon pointed at them
by Smith is central to their Fourth Amendment theories.7
The district court found that the troopers knew that Smith
was mentally unstable and that he possessed guns; that it
was undisputed that Scianna observed a red light in the
window of the Smith residence and that Marasco saw a red
dot appear on Scianna’s person; and that the troopers were
aware that Shafer once had complained about Smith
shooting out his lights. The district court then applied
these findings in determining that the officers had an
objectively reasonable belief that Smith was engaged in
_________________________________________________________________

7. As we interpret the Smiths’ argument their contention with respect to
a lack of probable cause does not in itself assert a Fourth Amendment
claim but is germane to their other Fourth Amendment claims. If we
misunderstand their position it does not matter as we are finding that
probable cause existed.

                                22


criminal activity and that the force they used was a
reasonable response to the danger they faced.

The Smiths argue primarily that a reasonable jury could
discredit the officers’ account of the incident and find that
Marasco did not in fact believe that Smith targeted a laser-
sighted weapon at Scianna. They note our approval of an
opinion by the Court of Appeals for the Ninth Circuit
warning that "courts should be cautious on summary
judgment to ‘ensure that the officer is not taking advantage
of the fact that the witness most likely to contradict his
story--the [decedent]--is unable to testify,’ " and that the
" ‘court may not simply accept what may be a selfserving
account by the officer. . . . [but] must also look at the
circumstantial evidence that, if believed, would tend to
discredit the police officer’s story, and consider whether
this evidence could convince a rational fact finder that the
officer acted unreasonably.’ " Abraham v. Raso, 183 F.3d
279, 294 (3d Cir. 1999) (quoting Scott v. Henrich, 39 F.3d
912, 915 (9th Cir. 1994)). Of course, this admonition does
not alter the requirement that a party opposing summary
judgment must present affirmative evidence--whether
direct or circumstantial--to defeat summary judgment, and
may not rely simply on the assertion that a reasonable jury
could discredit the opponent’s account. See Williams v.
Borough of W. Chester, 891 F.2d 458, 460-61 (3d Cir.
1989).

"[P]robable cause to arrest exists when the facts and
circumstances within the arresting officer’s knowledge are
sufficient in themselves to warrant a reasonable person to
believe that an offense has been or is being committed by
the person to be arrested." Orsatti v. New Jersey State
Police, 71 F.3d 480, 482 (3d Cir. 1995). Although, generally,
"the question of probable cause in a section 1983 damage
suit is one for the jury," Montgomery v. De Simone, 159
F.3d 120, 124 (3d Cir. 1998), a district court may conclude
"that probable cause did exist as a matter of law if the
evidence, viewed most favorably to Plaintiff, reasonably
would not support a contrary factual finding," and may
enter summary judgment accordingly. Sherwood v.
Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997).

                                23


The Smiths have not proffered affirmative evidence
raising questions of material fact with regard to the officers’
account. First, they rely on various facts allegedly
suggesting that Marasco had an improper motive: alleged
contradictions in the record as to why the officers went to
the scene; the fact that Marasco’s decision to respond to a
complaint about bright lights was made at 3:00 p.m., when
bright lights could not have been a problem; the fact that
Marasco was outside of his assigned geographic position;
and Marasco’s failure to heed his supervisor’s directions to
leave the premises if Smith did not respond. Improper
motive, however, is irrelevant to the question whether the
objective facts available to the officers at the time
reasonably could have led the officers to conclude that
Smith was committing an offense. See Whren v. United
States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774 (1996)
("Subjective intentions play no role in ordinary, probable-
cause Fourth Amendment analysis.").

The Smiths also point to contradictions concerning where
on Scianna’s body the troopers purportedly observed the
light and whether both officers were in the backyard when
Scianna mentioned seeing what he at first took to be a
video camera in the window. However, neither of these
inconsistencies tends to discredit the essential portion of
Marasco’s account: that, at some point when the officers
were together, he observed what he reasonably took to be
a laser sight pointed at Scianna.

Finally, the Smiths suggest that any red light, if the
troopers indeed saw one, could not have been emanating
from Smith’s residence because the troopers at one point
stated that the beam was pointed at Scianna’s back while
he faced the rear of the house. The Smiths further argue
that it is undisputed that Shafer was home at the time and
that he likely possessed firearms. The record, however, will
not support a finding that the light emanated from Shafer’s
property. Moreover, the officers already had spoken to
Shafer and there is no suggestion that they considered him
a threat of any magnitude. More importantly, Marasco
testified that the red light shone on different parts of
Scianna’s body as he turned around, so the fact that the
light was at some point on Scianna’s back and at another

                                24


point may have been on his chest or arm is not
determinative of the place of the origin of the light. Even if
the light came from some other part of Smith’s property,
the officers, based on their knowledge that Smith possessed
firearms, their knowledge of Shafer’s complaint that Smith
had shot out his lights, and the fact that Smith was not
answering their calls despite indications that he was on the
property, reasonably concluded that Smith might be
targeting them with a laser-sighted weapon.

In sum, the record establishes that the officers had an
objectively reasonable belief that Smith might be in the
house, ignoring their attempts to communicate with him
and bearing a laser-sighted firearm. The record also
establishes that, at some point, Marasco believed that
Scianna was being targeted by that firearm. At that point,
therefore, the officers had probable cause to seek to arrest
Smith.

       b. Excessive Force Claim

Of course, the fact that the defendants had probable
cause to arrest Smith does not mean that they could use
any amount of force in that process. Rather, they could not
use excessive force. "To state a claim for excessive force as
an unreasonable seizure under the Fourth Amendment, a
plaintiff must show that a ‘seizure’ occurred and that it was
unreasonable." Abraham, 183 F.3d at 288. Inasmuch as
the defendants do not contest that there was a seizure in
this case, in considering the excessive force contention the
only question on appeal is whether the force used to effect
that seizure was reasonable.

The test of reasonableness under the Fourth Amendment
is whether, under the totality of the circumstances,"the
officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them, without regard
to their underlying intent or motivations." Graham v.
Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872 (1989).
Thus, if a use of force is objectively unreasonable, an
officer’s good faith is irrelevant; likewise, if a use of force is
objectively reasonable, any bad faith motivation on the
officer’s part is immaterial. See Abraham, 183 F.3d at 289.

                                  25


Factors to consider in making a determination of
reasonableness include the severity of the crime at issue,
whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he actively is
resisting arrest or attempting to evade arrest by flight, see
Graham, 490 U.S. at 396, 109 S.Ct. at 1872, as well as the
possibility that the persons subject to the police action are
themselves violent or dangerous, the duration of the action,
whether the action takes place in the context of effecting an
arrest, the possibility that the suspect may be armed, and
the number of persons with whom the police officers must
contend at one time, see Sharrar v. Felsing, 128 F.3d 810,
822 (3d Cir. 1997). Of course,

       [t]he ‘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. . . . The calculus of reasonableness must
       embody allowance for the fact that police officers are
       often forced to make split-second judgments--in
       circumstances that are tense, uncertain, and rapidly
       evolving--about the amount of force that is necessary
       in a particular situation.

Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872. Finally,
although "reasonableness under the Fourth Amendment
should frequently remain a question for the jury," Abraham,
183 F.3d at 290, " ‘defendants can still win on summary
judgment if the district court concludes, after resolving all
factual disputes in favor of the plaintiff, that the officer’s
use of force was objectively reasonable under the
circumstances,’ " id. (quoting Scott v. Henrich, 39 F.3d at
915).

As already noted, the record establishes that the officers
had an objectively reasonable belief that Smith might be
targeting them with a laser-sighted firearm. For purposes of
the Smiths’ excessive force claim, however, the objective
reasonableness inquiry does not end here. The ultimate
question on review is whether the decision to activate SERT
and SERT’s subsequent actions were objectively reasonable
responses to this situation. The Smiths have proffered
sufficient evidence to make this a question appropriate for
resolution by a jury.

                                26


The district court concluded that the force used in this
case was far less extreme than that the police used in
Sharrar v. Felsing, in which we affirmed a district court’s
grant of summary judgment in favor of the defendant
officers on an excessive force claim. App. at 35-36. It is true
that the officers’ conduct here was certainly no more
forceful than in Sharrar, where an eight-member SWAT
team dressed in black fatigues and carrying shotguns,
rifles, and submachine guns was deployed, a police sniper
was called in, a perimeter was established, and police, after
calling the suspects out of their house, forced the suspects
to the ground and repeatedly yelled at them, "[k]eep your
fucking head down or I’ll blow it the fuck off." Sharrar, 128
F.3d at 815-16. In Sharrar, with respect to the excessive
force claim, we concluded: "[w]hile the language and
method used to effect the arrests appear to be more akin to
the Rambo-type behavior associated with police in
overdramatized B movies or TV shows than the police
conduct ordinarily expected in a quiet, family seaside town,
we are reluctant to establish a precedent that would subject
every police arrest of a group of possible violent offenders to
compliance with Marquis of Queensberry Rules of fair play."
Id. at 822. The district court, seizing on this language,
concluded that the less severe conduct in this case was
therefore not unreasonable.

The district court erred by failing to take into account
another portion of the reasonableness equation, namely,
the severity of the threat to which officers were responding,
in keeping with the Graham and Sharrar factors.8 In
Sharrar, officers were arresting four men and had been
advised that at least one of the men had used a gun in a
violent episode one to two hours before. Furthermore, there
had been some suggestion that the suspects were involved
with drugs, and arrests actually were made. Id. In this
case, by contrast, officers were approaching only one man
and, unlike in Sharrar, where a violent assault involving a
gun was itself the catalyst for the police arriving on the
scene, were responding to a minor complaint.
_________________________________________________________________

8. Although the district court quoted the factors identified in Sharrar, it
failed to consider any of them in its analysis except to note that Smith
was known to possess weapons.

                                27


We realize that several officers knew of Smith’s PTSD or
at least considered him unstable, and it generally was
believed that Smith possessed firearms. These factors may
be seen as tending to support the use of force.
Nevertheless, there were a number of other Graham and
Sharrar factors suggesting unreasonableness. There was no
indication that Smith had been using a gun recently or that
Smith ever has used a gun in a violent manner. No arrest
was made, and the Smiths have proffered evidence
suggesting that an arrest warrant was not even sought
until after SERT was activated. Most importantly, there is
no indication in the record that Smith had any history of
violence of which the officers may have been aware. Finally,
unlike in Sharrar, where just over three hours transpired
between the victim’s 911 call and the arrest of the four
suspects, here, according to the incident report,
approximately two and one half hours transpired between
Shafer’s call to the police and the decision to activate SERT,
and at least six hours passed between the phone call and
initiation of the first "rock assault" on the Smith residence.
In fact the police did not finally clear the residence until
approximately 7:30 a.m. on July 11, 1999, approximately
eight and one-half or nine hours after the call that initiated
their activity. A number of the relevant factors therefore cut
against a determination that they used reasonable force.

We also point out that the district court does not appear
to have considered certain other relevant facts in the light
most favorable to the Smiths. For example, the district
court summarily concluded that the officers’ awareness of
Smith’s PTSD cuts in favor of reasonableness because,
given Smith’s history of mental problems and possession of
weapons, the officers reasonably would believe that their
lives were in danger. The question the district court should
have asked, however, was not simply whether the officers
reasonably believed their lives were in danger, but whether
the activation of SERT and the tactics of that unit were a
reasonable response to that belief in the circumstances of
this case.

We recognize that a jury could conclude, as the district
court apparently did, that this overwhelming show of force
was a reasonable response to the threat the officers

                                28
perceived. However, a jury should be allowed to consider
the testimony of the Smiths’ police practices expert, Dr.
McCauley, who opined that the police responded
unreasonably to a situation involving a known Emotionally
Disturbed Person ("EDP"). Likewise, it appears to be
significant that Hall, who played a part in the decision to
activate SERT, testified that SERT is not activated unless a
warrant has been or is in the process of being prepared, or
if exigent circumstances exist. Hall did not believe that
there were exigent circumstances, and the decision to
obtain a warrant appears to have been made after SERT
was activated. If SERT activation was unwarranted under
SERT’s own procedures, that fact is at least probative of
unreasonableness.

In sum, the Smiths have proffered evidence sufficient to
require that the question of the reasonableness of activating
SERT and of SERT’s tactics be submitted to a jury. As the
Court of Appeals for the Tenth Circuit recently has noted,

       The decision to deploy a SWAT team to execute a
       warrant necessarily involves the decision to make an
       overwhelming show of force--force far greater than that
       normally applied in police encounters with citizens.
       Indeed, it is the SWAT team’s extraordinary and
       overwhelming show of force that makes ‘dynamic entry’
       a viable law enforcement tactic in dealing with difficult
       and dangerous situations. . . .

       . . . .

       The ‘SWAT’ designation does not grant license to law
       enforcement officers to abuse suspects or bystanders,
       or to vent in an unprofessional manner their own pent-
       up aggression, personal frustration or animosity
       toward others. If anything, the special circumstances
       and greater risks that warrant ‘dynamic entry’ by a
       SWAT team call for more discipline, control,
       mindfulness, and restraint on the part of law
       enforcement, not less. SWAT officers are specially
       trained and equipped to deal with a variety of difficult
       situations, including those requiring a swift and
       overwhelming show of force. At all times, SWAT officers
       no less than others--dressed in camouflage or not--

                                29


       must keep it clearly in mind that we are not at war
       with our own people.

Holland v. Harrington, 268 F.3d 1179, 1190-95 (10th Cir.
2001) (emphasis in original).9

As with the Smiths’ state-created danger claim, the
district court did not reach the issue of qualified immunity.
For the reasons expressed above, we will remand the case
to allow the district court to determine that issue in the
first instance.

       c. Unreasonable Seizure

Even assuming that there was a seizure because Smith
was still in the house when the police formed a perimeter
around his property, the Smiths cannot establish a Fourth
Amendment violation based on the officers’ conduct
following observation of the red dot by Marasco. We
recognize that it is undisputed that officers did not have a
warrant when they arrived at Smith’s home or when they
established a perimeter around his property before
activating SERT and that a warrantless seizure in a
person’s home violates the Fourth Amendment unless both
probable cause and exigent circumstances are present. See
United States v. Payton, 445 U.S. 573, 590, 100 S.Ct. 1371,
1382 (1980). But as we already have pointed out there was
probable cause here to believe a crime had been committed.
Thus, we address the exigent circumstances consideration.
It is established that there are exigent circumstances if the
safety of either law enforcement or the general public is
threatened. Warden v. Hayden, 387 U.S. 294, 298-299, 87
S.Ct. 1642, 1645-46 (1967). A court makes the
determination of whether there were exigent circumstances
by reviewing the facts and reasonably discoverable
information available to the officers at the time they took
their actions and in making this determination considers
the totality of the circumstances facing them. See United
_________________________________________________________________

9. In Holland, the court of appeals affirmed the district court’s grant of
summary judgment in favor of the defendants on an excessive force
claim based on the decision to activate the SWAT team, but reversed and
remanded on the question whether the actions taken by the SWAT team
once deployed were reasonable. Holland, 268 F.3d at 1191-92, 1195.

                                 30


States v. Sculco, 82 F. Supp. 2d 410, 417 (E.D. Pa. 2000).
Inasmuch as the officers had reason to believe that a laser-
sighted weapon was being pointed at them, they had reason
to fear for their own safety. Consequently, there were
exigent circumstances and establishment of a perimeter did
not constitute an unreasonable seizure.

       d. Unreasonable Search

The Smiths also contend that Marasco and Scianna
engaged in an unreasonable search before they believed
they were being sighted. Fourth Amendment protections
extend not only to a person’s home, but also to the
curtilage surrounding the property. United States v. Dunn,
480 U.S. 294, 300-01, 107 S.Ct. 1134, 1139 (1987). 10 In
this case, after Smith failed to respond when Marasco and
Scianna knocked at the front door, the officers, according
to their testimony, proceeded into the backyard of the
house and Marasco, at least, entered the garage. At that
time, the officers did not possess a warrant, nor were there
exigent circumstances, inasmuch as the officers simply
were responding to a minor complaint and there was no
indication of any danger to the officers’ or others’ safety or
of any other conduct suggesting the existence of an
exigency. Furthermore, the district court found that the
officers entered the curtilage, where Smith had a legitimate
expectation of privacy, and we find no reason to disturb
that finding.

The defendants correctly point out that courts generally
recognize a "knock and talk" exception to the warrant
requirement. See, e.g., Rogers v. Pendleton, 249 F.3d 279,
289-90 (4th Cir. 2001). Officers are allowed to knock on a
residence’s door or otherwise approach the residence
seeking to speak to the inhabitants just as any private
citizen may. Id. According to one scholar,"when the police
come on to private property to conduct an investigation or
for some other legitimate purpose and restrict their
_________________________________________________________________

10. We need not discuss the extent of the curtilage of Smith’s home for
it is clear that the activity subject to Fourth Amendment scrutiny was
within the curtilage whatever its extent and the defendants do not
contend otherwise.

                                31


movements to places visitors could be expected to go (e.g.,
walkways, driveways, porches), observations made from
such vantage points are not covered by the Fourth
Amendment." Wayne R. LaFave, 1 Search and Seizure: A
Treatise on the Fourth Amendment S 2.3(f) (3d ed. & Supp.
2003) (footnotes omitted). Rogers itself, however, stands for
the proposition that this principle does not extend officers
the right to make a general investigation in the curtilage
based only on reasonable suspicion, at least where the
inhabitant requests that the officers leave. Id.

Some courts of appeals have been more permissive of this
sort of police activity, holding that it is reasonable and
lawful as a matter of law for officers to move away from the
front door as part of a legitimate attempt to interview a
person. See United States v. Hammett, 236 F.3d 1054, 1060
(9th Cir. 2001) ("[A police] officer may, in good faith, move
away from the front door when seeking to contact the
occupants of a residence."); United States v. Raines, 243
F.3d 419, 421 (8th Cir. 2001) (recognizing "that law
enforcement officers must sometimes move away from the
front door when attempting to contact the occupants of a
residence" and finding that a deputy sheriff did not
interfere with defendant’s "privacy interest when he, in good
faith, went unimpeded to the back of [defendant’s] home to
contact the occupants of the residence" to serve civil
process); United States v. Daoust, 916 F.2d 757, 758 (1st
Cir. 1990) ("[I]f [the front] door is inaccessible[,] there is
nothing unlawful or unreasonable about [a state police
officer] going to the back of the house to look for another
door, all as part of a legitimate attempt to interview a
person."); United States v. Anderson, 552 F.2d 1296, 1300
(8th Cir. 1977) ("We cannot say that the [federal law
enforcement] agents’ action in proceeding to the rear after
receiving no answer at the front door was so incompatible
with the scope of their original purpose that any evidence
inadvertently seen by them must be excluded as the fruit of
an illegal search.").

Extrapolating from this line of cases, the district court
appears to have suggested that officers may proceed to the
back of a home when they do not receive an answer at the
front door any time they have a legitimate purpose for

                                32


approaching the house in the first place. App. at 43. But
the case law does not support such a sweeping proposition.
For example, in Raines and Anderson the courts, after
concluding that officers’ entry into the curtilage constituted
entry into an area in which the resident had a reasonable
expectation of privacy, held that the officers’ limited
intrusions were justified under the facts of those specific
cases. In Raines, an officer attempting to serve civil process
who did not obtain an answer at the front door, proceeded
to the backyard because he had observed several cars
parked in the driveway and suspected that the inhabitants
might be sitting outside on a summer evening, unable to
hear his knocking. Raines, 243 F.3d at 420-21. In the back,
he saw a makeshift fence with a ten-foot wide opening. Id.
at 420. Through the opening, he saw a large number of
marijuana plants growing, and he left immediately. Id. at
420-21.

In Anderson, officers investigating a theft proceeded to
the back of a house after not receiving an answer at the
front door when they heard a dog barking. Anderson, 552
F.2d at 1298. Suspecting that the owner might be with the
dog, they proceeded to the back of the house, observing
suspected stolen items through a window on the way. Id.
After finding the dog alone, they immediately returned to
the front of the house. Id. In Daoust , officers approached
"an isolated log house dug into the side of a hill" in an
attempt to question the owner as part of a drug
investigation. Daoust, 916 F.2d at 758. They noticed toys in
the driveway and observed that the front door was
inaccessible, as it was five feet above ground and had no
steps. Id. They knocked on a cellar door but did not receive
an answer, and left. They later returned, and, after again
not getting an answer at the cellar door, proceeded to the
back of the house where they observed a firearm through a
window. Id. In Hammett, however, the court flatly accepted
the argument that it is necessarily reasonable for officers to
proceed to the back of a house simply for the purpose of
locating someone with whom to speak or to locate another
door. Hammett, 236 F.3d at 1060.

Although the officers had a right to knock at Smith’s
front door in an attempt to investigate Shafer’s complaint,

                                33
we reject the defendants’ argument that this right
necessarily extended to the officers the right to enter into
the curtilage. Where officers are pursuing a lawful objective,
unconnected to any search for the fruits and
instrumentalities of criminal activity, their entry into the
curtilage after not receiving an answer at the front door
might be reasonable as entry into the curtilage may provide
the only practicable way of attempting to contact the
resident, as in Daoust, where the front door was
inaccessible. Similarly, officers reasonably may believe,
based on the facts available to them, that the person they
seek to interview may be located elsewhere on property
within the curtilage, as in Anderson and Raines, and, as in
those cases, an officer’s brief entry into the curtilage to test
this belief might be justified. Furthermore, even where
officers are only investigating a minor nuisance complaint,
the circumstances of the investigation may indicate the
presence of an exigency justifying entry into the curtilage.
Cf. United States v. Rohrig, 98 F.3d 1506, 1518-25 (6th Cir.
1996) (holding that officers’ warrantless entry into a house
to locate and abate a nuisance--loud music played late at
night of which neighbors from blocks away had complained
--was justified by exigent circumstances and was
reasonable).11

In this case, the district court did not make findings of
fact to support its conclusion that the officers’ decision to
proceed to the back of Smith’s house was reasonable given
their original purpose of investigating Shafer’s complaint.
The court did not discuss the layout of the property or the
position of the officers on that property. It is unclear from
the record exactly how set off Smith’s residence is from
other properties, and there is no indication of whether the
officers followed a path or other apparently open route that
would be suggestive of reasonableness.

In addition, Marasco had been to Smith’s residence in the
past and had been in Smith’s backyard once or twice
before. A jury could conclude that he therefore knew that
the Smith residence did not have a back entrance as seems
_________________________________________________________________

11. We express no opinion as to whether we would have found the
circumstances presented in Rohrig to be exigent.

                                34


to be the case.12 If Marasco had such knowledge, then this
is not a case where the officers necessarily acted reasonably
in proceeding to the back of the house to find another
entrance after receiving no answer at the front door. Cf.
Daoust, 916 F.2d at 758 (holding that officers’ conduct was
lawful where they "went to the back ‘looking for an
accessible main floor entrance’ not to see if unlawful
activity was taking place, but as part of their efforts to
interview Daoust"). It also appears that here the officers
entered the backyard at least twice, spending a more
significant amount of time looking around Smith’s property
than did the officers in Raines and Anderson in looking
around the properties involved there, and that the officers
here did so despite having been instructed to leave if they
did not receive an answer to their initial attempts to contact
Smith. Furthermore, the district court did not address the
fact that Marasco testified about entering Smith’s garage
after receiving no answer. The record indicates that the
garage was in fact a part of the structure of the house
itself.

In the circumstances, there remain questions of fact as to
whether the officers’ intrusion into the curtilage was
reasonable in light of their asserted purpose in making
their entry into Smith’s property which was not to make a
search. The district court therefore erred in granting
summary judgment in favor of the defendants on the
Smiths’ unreasonable search claims.13
_________________________________________________________________

12. In their reply brief the Smiths assert that"there were no doors into
the residence" from "the backyard." Appellants’ Reply br. at 27. Even if
in fact there was a door there our result on the unreasonable search
claim would not be changed.

13. Once again, the district court, having concluded that there had not
been a constitutional violation, declined to address the qualified
immunity issue. An individual’s Fourth Amendment interest in the
curtilage of his home has been well settled for over a century, and at
least since the Supreme Court reaffirmed it in Dunn. On remand, the
district court should address the specific conduct of the defendants in
determining whether they are entitled to qualified immunity on these
claims.

                                  35


       e. Malicious Prosecution

To prove malicious prosecution under section 1983, a
plaintiff must show that: (1) the defendants initiated a
criminal proceeding; (2) the criminal proceeding ended in
plaintiff ’s favor; (3) the proceeding was initiated without
probable cause; (4) the defendants acted maliciously or for
a purpose other than bringing the plaintiff to justice; and
(5) the plaintiff suffered deprivation of liberty consistent
with the concept of seizure as a consequence of a legal
proceeding. See Donahue, 280 F.3d at 379-80. The Smiths’
claim is based on the issuance of a warrant for Smith’s
arrest and the subsequent withdrawal of charges for lack of
probable cause. As already discussed, however, based on
the information available to officers at the time the warrant
was sought, there was probable cause for arrest. Because
initiation of the proceeding without probable cause is an
essential element of a malicious prosecution claim,
summary judgment in favor of the defendants was
appropriate on this claim.

4. State-Law Claims

After granting summary judgment in favor of the
defendants on all of the Smiths’ section 1983 claims, the
district court dismissed their supplemental state tort law
claims pursuant to 28 U.S.C. S 1367(c)(3). Because we
reverse the district court’s grant of summary judgment with
respect to certain of the Smiths’ section 1983 claims, we
also will reverse the district court’s dismissal of their
related state-law claims and the district court on the
remand should reinstate those claims. See Gruenke v. Seip,
225 F.3d 290, 308 (3d Cir. 2000); Erie County Retirees
Ass’n v. County of Erie, 220 F.3d 193, 217 (3d Cir. 2000).

B. DISCOVERY ORDERS

The court directed that all discovery in this case was to
be completed by October 26, 2001. On July 27, 2001, the
Smiths filed a Rule 56(f) motion seeking an extension for
discovery which the district court granted. Then on August
24, 2001, the defendants filed their motion for summary
judgment. On August 24, 2001, the Smiths filed their first
notices of deposition, providing 51 depositions to be taken
over an approximately three-week period. A magistrate

                                36


judge thereafter denied their request for leave to take more
than ten depositions, a limitation he earlier placed. The
district court affirmed the magistrate judge’s decision,
stating, "We find plaintiff ’s conduct has been dilatory and
that no sufficient reason for taking the deposition has been
made out." App. at 4. The district court reiterated these
reasons and further noted that the Smiths had had the
opportunity to depose "the major players" in the case in
denying the Smiths’ renewed motion in its November 14,
2001 order. App. at 22.

The Smiths ask us to reverse the district court’s rulings
largely because, according to them, all depositions would
have been taken before the close of discovery. The district
court’s decision whether to grant leave to take additional
depositions or to extend discovery is discretionary, however.
Even if all depositions could have been completed before
the close of discovery, and despite the fact that many other
witnesses, in a case involving 46 defendants, may have
been able to shed more light on the events in this case, we
cannot conclude that the district court abused its
discretion in finding that the Smiths’ conduct was dilatory.
The district court reasonably concluded that, given the
Smiths’ delay, granting their requests for leave would have
been burdensome and unnecessary. Thus, on the record
before us we cannot say that the court abused its
discretion in entering its discovery orders. We note,
however, that on the remand if the parties seek additional
discovery the court is free to revisit the point.

IV. CONCLUSION

For the foregoing reasons, we will affirm in part and
reverse in part the judgments of the district court. 14 We will
_________________________________________________________________
14. In closing we make the following observation. A reader of this opinion
may find it strange that we are dealing with this case as if there were
but one plaintiff and one defendant. While such treatment at least at
this time is reasonable with respect to the Smiths who have a common
interest in the liability issues, it may be questionable as to the
defendants as they did not all do the same things and we doubt that all
had the same knowledge of the germane facts. But we nevertheless have
dealt with this case as a single party defendant case because the parties

                                37


affirm the district court’s grant of summary judgment in
favor of the defendants on the Smiths’ First Amendment
retaliation claim, Fourth Amendment unreasonable seizure
and malicious prosecution claims, and substantive due
process cover-up and mishandling the corpse claims and
the district court’s rulings on the Smiths’ various discovery
motions. We will reverse the district court’s ruling with
respect to the Smiths’ state-created danger claim, excessive
force claim, and unreasonable search claim, and remand
the case to the district court for further proceedings
consistent with this opinion. We also will reverse the order
dismissing the Smiths’ supplemental state-law claims and
remand those claims to the district court. Our affirmance of
the orders on the discovery motions is without prejudice to
the Smiths seeking to reopen discovery.

A True Copy:
Teste:

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

have done so in their briefs. Thus, the Smiths simply refer to the
defendants as such and the defendants call themselves the state police.
Yet it is entirely possible that some but not all of the defendants may be
liable to the Smiths.

We therefore point out that just as a court should make a
determination on a claim of qualified immunity only by analyzing the
conduct of each defendant in a multi-party case, see Grant v. City of
Pittsburgh, 98 F.3d at 122, so questions regarding the basic liability of
the defendants ultimately must be answered on an individual basis.
Consequently, we do not by this opinion preclude individual defendants
from moving for summary judgment on claims against them that survive
our disposition of this appeal.

                                38
