161 F.3d 117 (3rd Cir. 1998), 97-7437, Mellott v. Heemer

Docket Nº:97-7437.
Citation:161 F.3d 117
Party Name:Wilkie MELLOTT; Bonnie L. Mellott; Kirk Mellott; Michelle Hollinshead; Jackie Wright v. Don HEEMER; David Seich; Paul Hardy; Michael Regan; United States of America, Appellants.
Case Date:November 05, 1998
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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161 F.3d 117 (3rd Cir. 1998)

Wilkie MELLOTT; Bonnie L. Mellott; Kirk Mellott; Michelle

Hollinshead; Jackie Wright


Don HEEMER; David Seich; Paul Hardy; Michael Regan;

United States of America, Appellants.

No. 97-7437.

United States Court of Appeals, Third Circuit

November 5, 1998

Argued April 27, 1998.

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[Copyrighted Material Omitted]

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David M. Barasch, United States Attorney, Mary C. Frye (Argued), Assistant U.S. Attorney, Office of United States Attorney, Harrisburg, PA, for Appellants.

Donald A. Bailey (Argued), Harrisburg, PA, for Appellees.

Before: ALITO, RENDELL, and GARTH, Circuit Judges.


ALITO, Circuit Judge:

This case involves allegations that several Deputy United States Marshals used excessive force during a court-ordered eviction. On appeal, the marshals contend that the district court erred by refusing to grant summary judgment in their favor on grounds of qualified immunity. Because we conclude that the marshals are entitled to summary judgment on all the plaintiffs' claims, we reverse.


Bonnie and Wilkie Mellott ("the Mellotts") are former owners of land in Pennsylvania on which they resided and operated a dairy farm. The Mellotts' son, Kirk, also resided on the property in a separate house located about a mile away from his parents' home. In the early 1980s, the Mellotts borrowed money to purchase additional land and to make improvements on their farm. After falling far behind in their debt payments, the Mellotts filed a voluntary petition for bankruptcy in 1989. The Mellotts' property was sold at a public auction in November 1992, and the bankruptcy court issued an order directing the Mellotts to vacate the premises by December 10, 1992.

The Mellotts failed to leave their former property by that date, and the bankruptcy court issued an order of contempt on December 21, 1992. The court directed the Mellotts, under penalty of incarceration and/or fine, to vacate the premises by December 28, 1992. The Mellotts still refused to leave and instead responded by filing a motion to vacate the judgment, a notice of appeal, a motion to disqualify the bankruptcy judge, and a notice of motion to stay. On December 31, 1992, the bankruptcy court denied the Mellotts' motions and signed a writ of assistance directing the United States Marshal Service to serve the Mellotts with a notice stating that all persons and personal property had to be removed from the premises by January 5, 1993. The deputy marshals testified that they posted the notices at the Mellotts' residence on December 31, 1992, and Kirk Mellott testified that he found a notice on his door that same day. Kirk further testified that he discussed the notice with his parents and understood that the notice ordered him to vacate the premises.

After the Mellotts again failed to leave by the ordered date, the bankruptcy court issued a writ of assistance, dated January 11, 1993, directing the United States Marshal Service to secure the auctioned land and remove all persons from the premises. Upon receipt of the writ, Supervisory Deputy United States Marshal Robert Byerts assigned Deputy Marshal Don Heemer to head a team of five deputy marshals ("the marshals") that would remove the Mellotts from the property. Byerts testified that he provided the marshals with the following information prior to the eviction:

a. The Bankruptcy Court had requested additional security for hearings at which the Mellotts were expected to appear;

b. A Farmers Home Administration [FHA] County Supervisor had reported that Wilkie Mellott had chased him off the Mellott property at the front of a pick-up truck; that Wilkie Mellott had displayed a handgun after chasing the County Supervisor off the property in a pick-up truck; that Wilkie Mellott had threatened to shoot any federal

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agent that came on his property; and that the County Supervisor had felt his life had been threatened by Wilkie Mellott.

c. The Mellotts were reported to own numerous firearms.

d. Kirk Mellott had recently sustained a serious head injury and was considered unstable.

e. Kirk Mellott had informed Deputy Marshals Regan and Knicely that the Mellotts were not going to leave the farms.

App. 59-60. See also App. 100-110, 114, 117, 162-63 (deposition of Donald Heemer); App. 182-85 (deposition of David Seich). 1 Byerts further testified that the marshals wore bullet-proof vests and "were authorized to use a short shotgun and an AR-15 semi-automatic rifle in the removal operation because of concerns that they might meet armed resistance at the Mellott residences." App. 59.

On the morning of January 21, 1993, the marshals met with at least two uniformed state troopers and drove to the Mellotts' residence. Viewing the evidence in the light most favorable to the plaintiffs, the eviction proceeded as follows. 2

When the officers arrived at the Mellotts' residence, they approached the house, and Deputy Marshal Heemer knocked on the front door. After Bonnie Mellott answered the door, Heemer entered the house, pointed his gun "right in her face," pushed her into a chair, and kept his gun aimed at her for the remainder of the eviction. App. 264-65, 424, 441. Deputy Marshal David Seich entered the house next, "pumped a round into the barrel" of his sawed-off shotgun, pointed it at Wilkie Mellott, and told him "to sit still, not move and to keep his mouth shut." App. at 265. See also App. at 440-41. With respect to this encounter, there is evidence that the marshals were aware before the eviction that Wilkie Mellott was recovering from heart surgery. Supp.App. at 9 n. 3 & 42. Behind Seich, two more marshals entered the house along with a state trooper who identified himself and said that he "was there for everybody's protection." App. at 266.

Also present in the Mellotts' home at the time of the eviction were Michelle Hollinshead, a radio reporter, and Jackie Wright, a friend of the Mellotts. When the marshals entered the residence, Wright was in the front room with the Mellotts, and Hollinshead was in the kitchen on the telephone with the local sheriff. Hollinshead testified that one of the marshals ran into the kitchen, "pumped" his semi-automatic gun, "stuck it right in [her] face and ... said: 'Who are you talking to, hang up the phone.' " App. at 454-55. See also App. at 461-63. After Hollinshead continued talking, the marshal put his gun "to the back of her head" and told her to "[s]hut the hell up and hang up the phone." App. at 455. At this point, Hollinshead hung up the phone, and the marshal put his gun into her back and shoved her down a hallway towards the front room.

In the meantime, while two marshals were conducting a sweep of the residence, 3 Wilkie

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Mellott said he felt ill and requested his medication. When Bonnie Mellott rose to get the medication, Deputy Heemer pushed her back into her chair and asked her where the medication was located. After receiving this information, Heemer retrieved Wilkie Mellott's medication and handed it to him.

At some point during the eviction, Bonnie Mellott overheard the marshals discussing their plans to remove Kirk Mellott from his residence, and she offered to accompany them to Kirk's house. The marshals rejected this offer but agreed to allow Jackie Wright to come with them. In their depositions, both Wright and Bonnie Mellott explained that they were concerned about how Kirk might react to the marshals, see App. at 272 & 426, and Bonnie testified that she believed it would be helpful if Kirk saw a "familiar face." App. at 310. Before proceeding to Kirk's house, the deputy marshals directed Bonnie and Wilkie Mellott to leave the property, and Deputy Heemer allegedly told them to start driving and not to look back or they would be shot. Bonnie Mellott also testified that Heemer said they would be shot as trespassers if they went to Kirk's house.

After the Mellotts departed, Jackie Wright drove to Kirk's residence in his own vehicle, followed by the marshals and the state troopers. Wright testified that, once at the house, the marshals told him that he "was going to go through the door first ahead of them." App. at 429. One marshal advised Wright "that if anything goes wrong ... you're going to be the first one to go down," and as they were "heading into the house," Wright felt a "gun in [his] back." Id. See also App. at 379. Wright entered the house without knocking and found Kirk Mellott sitting in his living room with a bag full of his belongings. Defendant Heemer then approached Kirk, "aimed his gun at [his] chest, physically took [him] by the arm, spun him around and pushed him up against the wall." App. at 386-87. After searching Kirk's bag and conducting a sweep of the residence, the marshals escorted the two men out of the house and ordered them off the property.

The plaintiffs filed an amended complaint in January 1995, alleging, inter alia, that the individual defendants violated their Fourth Amendment right to be free from unreasonable seizures and their Fifth Amendment right to substantive due process. The defendants moved for summary judgment on the ground that they were entitled to qualified immunity, and the district court denied their motion, finding that there were material issues of fact as to (1) whether the defendants violated the plaintiffs' Fourth and Fifth Amendment rights by using excessive force during the eviction and (2) whether the defendants reasonably could have believed that their conduct did not violate clearly established law. We have jurisdiction over the defendants' appeal under the collateral order doctrine. See Acierno v. Cloutier, 40 F.3d 597, 605 (3d Cir.1994) (in banc).


A. The marshals are entitled to qualified immunity if, at the time they acted, they reasonably could have believed that their conduct did not violate the plaintiffs' clearly established constitutional rights. See...

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