128 F.3d 810 (3rd Cir. 1997), 96-5375, Sharrar v. Felsing

Docket Nº:96-5375.
Citation:128 F.3d 810
Party Name:Ronald E. SHARRAR; Gerard A. Sweeney; David L. Brigden; Kenneth J. Sharrar, v. Dennis FELSING, Sgt., Individually and as an officer of the Sea Isle City Police Department; William Kennedy, Detective Sgt., Individually and as an officer of Sea Isle City Police Department; Albert Wilson, Lt., Individually and as an officer of the Sea Isle City Police
Case Date:October 24, 1997
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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128 F.3d 810 (3rd Cir. 1997)

Ronald E. SHARRAR; Gerard A. Sweeney; David L. Brigden;

Kenneth J. Sharrar,

v.

Dennis FELSING, Sgt., Individually and as an officer of the

Sea Isle City Police Department; William Kennedy, Detective

Sgt., Individually and as an officer of Sea Isle City Police

Department; Albert Wilson, Lt., Individually and as an

officer of the Sea Isle City Police Department; Michael

Larkin, Sgt., Individually and as an officer of the Sea Isle

City Police Department; City Of Sea Isle

Ronald E. Sharrar, Gerard A. Sweeney, David L. Brigden and

Kenneth L. Sharrar, Appellants.

No. 96-5375.

United States Court of Appeals, Third Circuit

October 24, 1997

Argued May 23, 1997.

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Jane M. Shields (Argued), Sherilyn M. Arnold, Exton, PA, for Appellants.

Steve Drake (Argued), Savio, Reynolds & Drake, Absecon, NJ, for Appellees.

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Before: SLOVITER, Chief Judge, ROTH, Circuit Judge and POLLAK, [*] District Judge.

OPINION OF THE COURT

SLOVITER, Chief Judge.

Ronald Sharrar, Kenneth Sharrar, David Brigden and Gerard Sweeney brought this civil rights action pursuant to 42 U.S.C. § 1983 against police officers Lt. Albert Wilson, Sgt. Michael Larkin, Sgt. William Kennedy, Sgt. Dennis Felsing, and the City of Sea Isle, New Jersey, alleging unlawful arrest, arrest with excessive force, and two illegal searches. After the district court granted summary judgment to the defendants on all claims except for the second allegedly illegal search, a magistrate judge conducted a jury trial on the remaining claim against Sgts. Larkin and Kennedy. The jury found that the search was conducted without a warrant but that Sgt. Kennedy had not participated in the search and that Sgt. Larkin had a reasonable belief that he had a warrant so was entitled to qualified immunity.

The plaintiffs appeal the summary judgment order, the denial of their Motion for Judgment as a Matter of Law, and the submission of a special interrogatory to the jury with respect to Sgt. Kennedy's role in the illegal search. Plaintiffs do not appeal dismissal of their claims against the City.

On this appeal, we must consider plaintiffs' contentions that the court erred in disposing of certain claims by summary judgment and in its handling of the one claim that reached the jury. We must also reach the issue of qualified immunity, which had been sought by the defendants although not fully addressed by the district court.

I.

BACKGROUND

A.

Facts

As to those portions of this case that were decided by summary judgment, we set forth the undisputed facts as revealed by the record, which is comprised almost entirely of deposition testimony, and the plaintiffs' version of the facts when there are disparities. See In re City of Philadelphia Litigation, 49 F.3d 945, 949 (3d Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 176, 133 L.Ed.2d 116 (1995). We also refer to additional facts adduced at the trial which was held on the claim based on the second search.

On October 1, 1992 at approximately 12:10 p.m. Patricia Gannon-Brigden (referred to here as Patricia Gannon) called 911 and said "I had somebody come into my apartment and beat me up. I'm bleeding pretty bad." App. at 152. When the dispatcher asked who beat her up she replied "Robert Carroll." The dispatcher asked for clarification and Gannon repeated two more times that it was Robert Carroll who beat her up. Id. The dispatcher asked if he was still there and Gannon replied "No, he left. And three other people were here with him. I'm bleeding. I have blood all over me. There is blood everywhere." App. at 152-53. The dispatcher then told Sgt. Felsing, who was in the room with the dispatcher, that "There is a woman beat up by Robert Carroll." App. at 153. Sgt. Felsing's response was inaudible and in deposition he testified that he never heard the dispatcher mention the name Robert Carroll.

When Sgt. Felsing arrived at Gannon's apartment she told him that she had been hit, and he saw a two-inch laceration on her scalp, a pool of blood on the kitchen floor, blood on a pillow in the bedroom and blood in her hair. There were no signs of a forced entry or any broken objects in the apartment. She told Sgt. Felsing "that her [estranged] husband, David Brigden, and three others had come into the house, that they held her while David pulled a gun and hit her on the side of the head." App. at 250. She said that Brigden was being investigated by the FBI for bringing drugs into town, and that he told her that he was afraid that she

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had gone to the FBI, and that "she wouldn't be the first body he's thrown in the river and they haven't found. He hit her and that's the last she remembered." App. at 255. Gannon did not identify or describe the other three men to Sgt. Felsing.

An ambulance arrived soon after, as did Sgt. Larkin and Capt. Kevin McClory. Sgt. Larkin stated that "Officer Felsing indicated to me that [Gannon's] ex-husband entered the condominium while two of her [sic] friends held her down, he struck her with a handgun, and there was another person involved, that he was standing by the door, and he indicated that [Gannon] said that after they left, they jumped into the brown van and they went back to 49th Street." App. at 297. Neither Sgt. Larkin or Capt. McClory spoke with Gannon.

Gannon was taken to the hospital and was admitted at approximately 1:09 p.m. About the same time, Sgt. Larkin dispatched Sgt. Felsing to Brigden's home on 49th Street to see whether the van was there. Sgt. Felsing radioed Sgt. Larkin to tell him that the van was in front of Brigden's residence and then parked his car on another street and walked to the northwest corner of 49th Street and waited. Sometime thereafter, while Sgt. Felsing was at the property, Kim Candle, a resident of one of the units in the building, came out and Sgt. Felsing asked her if Brigden was in the house. She responded that she had heard noise downstairs "so she knew they were there." App. at 263.

Sgt. Larkin also proceeded to Brigden's residence and radioed the license number of the van to the dispatcher, who confirmed that it was Brigden's van. At approximately 1:30 p.m. Capt. McClory arrived and Sgt. Larkin suggested that they seek reinforcements. Capt. McClory agreed and Sgt. Larkin called the dispatcher and told him to call Lt. Wilson, "who was in charge of the tactical unit," and offduty officers. App. at 298. It took approximately a half hour to forty-five minutes for all the reinforcement officers to arrive.

A "temporary command post" was set up at the 49th Street corner where the officers assembled in a variety of police vehicles. App. at 345. City of Sea Isle Mayor Michael McHale arrived, as did Police Commissioner Libro. FBI agent Jack Reemer was called to the scene as a trained hostage negotiator. Two officers from the Sheriff's Department arrived. Additional officers from the Avalon and Ocean City Police Departments arrived, as did several officers with drug/explosives sniffing dogs. Lt. Wilson, the officer in charge of the SWAT team, arrived with the entire eight member SWAT team, who were dressed in black fatigue uniforms and armed with shotguns, rifles and submachine guns. App. at 405-06.

The police created an inner and outer perimeter around Brigden's residence. Capt. McClory ordered the evacuation of all residents in the inner perimeter. He dispatched someone to contact the schools in the area to divert their normal bus routes and keep at school all children who lived in the immediate vicinity of Brigden's residence. App. at 310. The fire station was ordered to accept evacuees, app. at 145; fire trucks and ambulances were told to come to the scene without lights and sirens; the City marina was closed so that no boats could leave the harbor; and the bridge which provided the sole vehicular access to the City was blocked.

Once the inner perimeter was cleared, Lt. Wilson assigned duties to members of the tactical team. Officer Rock, who was "the department sniper," and another officer were stationed at a nearby building. App. at 350. Sgt. Larkin, Lt. Wilson and at least three other officers were assigned to the rear of the residence. Sgt. Kennedy was sent to the front of the residence in order to watch the front door. Lt. Wilson then told Sgt. Felsing to go to a nearby house and call Brigden. Sgt. Felsing was accompanied by the FBI hostage negotiator.

Sometime between 2:30 and 3:20 in the afternoon, Gerard Sweeney, who along with Ronald and Kenneth Sharrar was staying with Brigden for a few days, looked out a sliding glass door and saw an armed man in black fatigues in the backyard. Frightened, he yelled "David, call the police." App. at 121. Brigden stated that "I looked out the back window and there was a fellow there kneeling, dressed in black with a shotgun

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pointed at the house. And I then went to the side window and looked out the side window and saw a man there with a machine gun...." App. at 129.

When Brigden picked up the phone to call the police, Sgt. Felsing was already on the line. Sgt. Felsing identified himself, told Brigden that the house was surrounded by police, that they had reason to believe he had committed an assault, and wanted him to "send his people out" one by one backwards out the back door and then for him to come out. App. at 262. Brigden stated that while he was on the phone he could hear men screaming for them to come out backward with their hands on their heads.

The four men complied and walked out backwards one at a time into the backyard and were ordered to lie face down in the dirt. They allege that the police yelled and "threatened to blow our brains out if we made one wrong move." App. at 114. Sweeney stated that the police yelled: "You move, I will blow your ... fucking heads off."...

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