The opinion of the court was delivered by: EDMUND V. LUDWIG
This Federal Tort Claims Act case, 28 U.S.C. §§ 1346, 2671 et seq., grows out of the arrest of plaintiff Ronald L. Nash on February 1, 1989 by three deputized U.S. marshals - Pa. State Trooper Arthur Moss, Philadelphia Deputy Sheriff William Marker, and Philadelphia Police Officer Barbara Smith. Plaintiff claims that in effectuating the arrest the officers used excessive force.
The following facts are set forth in the parties' pre-trial stipulation:
On February 1, 1989, plaintiff was arrested in the third-floor bedroom of a row house located in Philadelphia. He had been living there since 1987. Previously, he had resided in Texas, where he had been arrested on drug charges. On August 11, 1987, he had failed to appear for a hearing, and the Texas court issued a warrant for his arrest.
In early 1989, the U.S. Marshal's Fugitive Task Force in Philadelphia obtained information that plaintiff was living at 3945 Terrace Street. On February 1, 1989, at about 8:50 a.m., eight law enforcement officers who were members of the Task Force went to that address to serve the arrest warrant. The officers, all in civilian clothes, included Moss, who was in charge, Marker, and Smith. Plaintiff lived in the house with Perry Stocker. When the officers arrived that morning, Stocker admitted them and did not object to their entry or to their going upstairs. When Marker and Smith were on the second floor, he informed them that plaintiff was on the third floor. The officers did not have a search warrant.
Plaintiff's bedroom is at the front of the house at the end of the third-floor hallway, which runs from the staircase at the rear. The bedroom is 10 X 15 feet, with a 29 1/2 inch doorway. It had a king-sized bed and the near side of the bed was about 30 inches from the doorway and the far side about 20 1/2 inches from the outer wall. The hallway from the staircase is 12 to 15 feet long. Plaintiff's bedroom door was open when Moss, Marker, and Smith, in that order, reached the third floor. They had an unobstructed view into the bedroom.
Upon arriving at the third floor, Moss kicked in the door of another bedroom, which made a loud crashing sound. Awakened by the noise, plaintiff crouched down between his bed and the outer wall and saw two of the officers in the hallway, approaching with their guns drawn. He had a loaded .357 revolver.
As the officers proceeded toward plaintiff's bedroom, plaintiff reached up from behind the bed pointing the revolver at the ceiling. The flat part of the gun was parallel to the bed and the outer wall of the bedroom. He did not say anything.
Moss had a .45 caliber pistol and fired five or six times. Marker had a 9mm pistol and fired seven ...