446 F.3d 483 (3rd Cir. 2006), 4-1732, Couden v. Duffy

Docket Nº:4-1732.
Citation:446 F.3d 483
Party Name:Pamela A. COUDEN; Tiffany A. Couden; Adam R. Couden, a minor, by his next friend, Pamela A. Couden; Nicholas M. Couden, a minor, by his next friend, Pamela A. Couden; Jordan T. Couden, a minor, by his next friend, Pamela A. Couden; Luke J. Couden, a minor, by his next friend, Pamela A. Couden; and Micah J. Couden, a minor, by his next friend, Pamel
Case Date:May 01, 2006
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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446 F.3d 483 (3rd Cir. 2006)

Pamela A. COUDEN; Tiffany A. Couden; Adam R. Couden, a minor, by his next friend, Pamela A. Couden; Nicholas M. Couden, a minor, by his next friend, Pamela A. Couden; Jordan T. Couden, a minor, by his next friend, Pamela A. Couden; Luke J. Couden, a minor, by his next friend, Pamela A. Couden; and Micah J. Couden, a minor, by his next friend, Pamela A. Couden, Appellants,


Scott DUFFY; James C. Armstrong; Jay Freebery; Liam Sullivan; Two Unknown Named Agents of the Federal Bureau of Investigation; New Castle County; the New Castle County Department of Police; City of Wilmington; City of Wilmington Police Department; *United States of America, (*Amended Per Clerk's Order of 4/7/04).

No. 4-1732.

United States Court of Appeals, Third Circuit.

May 1, 2006

Argued Sept. 29, 2005.

On Appeal from the United States District Court for the District of Delaware, (D.C. No. 03-cv-369), District Court Judge: Honorable Kent A. Jordan.

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William D. Fletcher, Jr. Noel E. Primos (ARGUED) Schmittinger & Rodriguez, P.A., ATTORNEYS FOR APPELLANTS.

Judith A. Hildick, Michele D. Allen (ARGUED), New Castle County Law Department,

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Colm F. Connolly United States Attorney Rudolph Contreras (ARGUED) Assistant United States Attorney Office of the United States Attorney, ATTORNEYS FOR APPELLEES SCOTT DUFFY AND THE UNITED STATES OF AMERICA.


Before: RENDELL, FUENTES, and WEIS, Circuit Judges.


FUENTES, Circuit Judge.

In the hopes of catching a fugitive wanted for drug and weapons offenses, federal and local law enforcement officers set up undercover surveillance outside a home in Newark, Delaware. During the surveillance, plaintiff-appellant Pamela Couden, who lived near the target house, pulled up in front of her home with five of her children in her car. Couden's 14 year-old son got out of the car to leave his skateboard in the garage and to summon his sister from the house. Before realizing they had the wrong person, the officers approached the Couden car with guns drawn, then entered the Couden home where they tackled and handcuffed Couden's son.1 The Coudens filed suit against the officers and various government entities, claiming constitutional and state common law violations. Concluding that the officers' conduct was reasonable, the District Court granted summary judgment in favor of all defendants. We conclude that the District Court erred in failing to consider the facts in the light most favorable to plaintiffs. We reverse in part, affirm in part, and remand for further proceedings.


The relevant facts are as follows. On April 12, 2001, members of the Delaware Joint Violent Crime Fugitive Task Force set up surveillance near 7 Sanford Drive in Newark, Delaware, based on a tip that a fugitive wanted by the New Castle County Police Department for drug and weapons-related charges might be staying at that address. The Task Force was made up of both state and federal officers, and the members at the scene were defendant-appellees Scott Duffy of the Federal Bureau of Investigation (FBI), James Armstrong and Jay Freebery of the New Castle County Police Department, and Liam Sullivan of the Wilmington Police Department. The members of the Task Force were parked in two unmarked vehicles and wore plain clothes.

At about 8:30 p.m., Pamela Couden drove up to her home at 3 Sanford Drive, two houses away from 7 Sanford Drive, with five of her children – plaintiff-appellants Micah, age 5, Luke, 7, Jordan, 9, Nicholas, 11, and Adam, 14. Couden's daughter, 17 year-old Tiffany, was inside the residence. Couden parked on the street and kept her lights on and the engine running while Adam exited the car. According to Couden, she was waiting for Adam to put his skateboard in the garage and summon his sister, and the family then planned to go out to dinner. Adam walked into the garage, where he put down his skateboard and looked through a window from the garage into the house. He saw

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Tiffany through the window and started to leave the garage. At that time, he saw a man charging towards him with a gun. Frightened, he slammed the garage door shut, remaining inside.

Meanwhile, Pamela Couden pulled her car into the driveway, put her high beams on, and blew the horn to summon Adam. She then saw an unknown man – later determined to be Officer Armstrong – walking towards her with a gun. When he reached the car he pointed the gun at Pamela Couden and pulled the door handle without displaying a badge or identifying himself in any way. Not realizing that the man was an officer, Couden tried to escape. She pressed the gas pedal, swerved to avoid the garage, and swerved again to avoid a tree. She then saw a second man – later determined to be Officer Freebery – running towards the car pointing a gun at her and holding a flashlight above his head. As Couden drove past Officer Freebery, he threw the flashlight at a window of the car, shattering the glass. The children screamed from the back seat of the car, and Couden believed that one of them had been shot. Couden continued driving to a neighbor's house and drove over the curb, breaking the car's steering column. She ran into the neighbor's house and called 9-1-1.

From where he was standing inside the garage, Adam Couden heard his mother and brothers screaming "he's got a gun!" and then saw the family car drive across the yard with tires screeching. He then heard the sound of glass shattering.

Tiffany testified that, from inside the house, she saw a man with a gun approach the sliding-glass rear door to the house. The man tried to open the door, and when he saw Tiffany, he showed her what she thought was a badge and demanded entry. Tiffany testified that the man entered the house, but she did not specify whether she let him in or whether he forced his way in. A second man followed the first man into the house, and told Tiffany that there was a robber in the house. One of the men proceeded down the hallway, yelling "Come out with your hands up!" A third man then entered and headed toward the garage, and Tiffany heard someone yell "we got him" from the area of the garage and kitchen. Two of the men brought Adam into the house from the garage and threw him on the floor, where four men participated in pushing his head down, pointing guns at him, and spraying him with mace. They then handcuffed him.2 Tiffany told the men that Adam was her brother, and they demanded a driver's license from Adam. Adam said that he was too young to have a driver's license. The men then left the house. About twenty minutes later, they returned and removed Adam's handcuffs.

Later that evening, Officers Armstrong and Freebery spoke to Pamela Couden and explained that a surveillance team was working undercover in the neighborhood, and that they had mistakenly assumed that Adam was the fugitive whom they were seeking. Officer Armstrong also admitted to Couden that he had seen the children in the back seat when he approached her vehicle.

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Couden and the six children filed suit against the officers, the City of Wilmington, the Wilmington Police Department, New Castle County, and the New Castle County Police Department in the United States District Court for the District of Delaware in April 2003. They claimed violations of their rights under the Fourth and Fifth Amendments to the United States Constitution, and they proffered state common law claims of intentional and negligent infliction of emotional distress, assault and battery, false imprisonment, trespass, and wanton negligence. The complaint was originally filed against Agent Duffy and "unknown named agents of the FBI," but after defense counsel provided plaintiffs with the names of the local officers involved in the relevant events, plaintiffs filed an amended complaint naming as defendants James Armstrong, Jay Freebery, Liam Sullivan, the New Castle County Police Department, New Castle County, the City of Wilmington, and the City of Wilmington Police Department. After exhausting their administrative remedies under the Federal Tort Claims Act (FTCA) in November 2003, plaintiffs added the United States as a defendant.

Agent Duffy, Officer Armstrong, Officer Freebery, New Castle County, and the New Castle County Police Department filed motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative for summary judgment. The United States also filed a motion to dismiss. Officer Sullivan, the City of Wilmington, and the Wilmington Police Department did not make any dispositive motions. Plaintiffs filed a motion under Rule 56(f), requesting an opportunity to take further discovery. The District Court considered all dispositive motions filed by defendants as motions for summary judgment, and granted judgment to all defendants, including, sua sponte, to Sullivan, the City of Wilmington and the Wilmington Police Department. Couden v. Duffy, 305 F.Supp.2d 379, 385, 392-93 (D.Del. 2004). The Court also denied plaintiffs' 56(f) motion. Id. at 393. This appeal followed.3


I. Constitutional Claims Against the Individual Defendants

Under 42 U.S.C. §1983, an individual may bring a suit for damages against any person who, acting under the color of state law, deprives another individual of any...

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