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Sharrar v. Felsing

October 24, 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



On Appeal from the United States District Court

for the District of New Jersey (D.C. No. 94-cv-01878)

Before: SLOVITER, Chief Judge, ROTH, Circuit Judge and POLLAK, *fn* District Judge

SLOVITER, Chief Judge.

Filed October 24, 1997

Argued May 23, 1997

(Filed October 24, 1997)

OPINION OF THE COURT

Ronald Sharrar, Kenneth Sharrar, David Brigden and Gerard Sweeney brought this civil rights action pursuant to 42 U.S.C. Section(s) 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, 116 S. Ct. 176 (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 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 off-duty 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 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." App. at 122. Kenneth Sharrar stated that once on the ground the police "came up and were yelling, where's the fucking gun. Stuck a gun in the back of my head, put their knee in my back." App. at 115. Ronald Sharrar claimed the police yelled at him to "[k]eep your fucking head down or I'll blow it the fuck off," and repeated that threat three to five times. App. at 105.

By 3:20 p.m. the four men were handcuffed, frisked, and taken to the police station. According to Lt. Wilson, once the four were taken into custody "[t]he tactical unit immediately entered the building and cleared it to make sure there were no other suspects still hiding inside." App. at 429.

Brigden's residence consisted of a three story single-family house that had been converted into four separate locked and numbered apartment units. The first floor contained two apartments, one of which was occupied by Brigden. There were separate apartments on the second and third floors. The officers admitted that they knew that the other units were rented to other people.

Lt. Wilson testified that he and the SWAT team cleared the building by entering each room in the entire building to make sure there were no other suspects. The Mayor of the City of Sea Isle also entered the building during this sweep. Lt. Wilson then secured the residence so that no one would enter the premises again until a search warrant was procured. This sweep took somewhere between five and twenty minutes.

The precise sequence thereafter is unclear. At Sgt. Kennedy's deposition he stated that he and Sgt. Felsing then went to obtain a search warrant from Municipal Court Judge Kenneth Calloway, that he met with Judge Calloway and, before he had anything in writing, told him what had occurred and asked for a "no knock search warrant" for the premises and all vehicles on the premises. App. at 361-63. Sgt. Kennedy then claimed that Judge Calloway gave him oral permission to search the premises and told him to supply the necessary paperwork later. App. at 364. Sgt. Kennedy informed Lt. Wilson that Judge Calloway had authorized the search warrant and that the premises could be searched. Sgt. Kennedy went back to Brigden's residence and conducted a "walk-through of the scene" at the same time that Sgt. Larkin, pursuant to Lt. Wilson's direction, conducted the search. He was accompanied by several other police officers, county sheriffs, and dogs. Sgt. Kennedy then returned to the police station where he formally transcribed the information he previously had given to Judge Calloway and placed it in a search warrant application. Judge Calloway signed the search warrant at approximately 7:30 p.m., after both the sweep and the entire search had been completed. At Judge Calloway's deposition, taken shortly after Sgt. Kennedy's deposition, Judge Calloway testified that he did not remember"ever giving a verbal search warrant or authorization to do anything." App. at 530.

At the trial, Sgt. Kennedy acknowledged that he had testified at his deposition that he had received an oral warrant from Judge Calloway, and transmitted that information to the officers at the residence. However, he stated that his recollection had been refreshed by review of the telephonic transmission. App. at 844-45. He testified, or at least suggested, that the search was instituted following a telephone call during which Lt. Wilson, who was at the scene, was advised by Capt. Devlin that he had received a telephonic or oral warrant from Judge Calloway. App. at 832-34, 836, 839-41.

The next day the four plaintiffs were arraigned before Judge Calloway and were charged with burglary, assault, making terroristic threats and conspiracy. All of the charges were eventually dismissed.

B. Procedural History

In their Section(s) 1983 complaint, the four plaintiffs sued Sgt. Felsing, Sgt. Kennedy, Sgt. Larkin and Lt. Wilson for violation of the Fourth and Fourteenth Amendments for arresting them without probable cause, unreasonable search and seizure, and use of excessive force. They also brought a Section(s) 1983 claim against the City of Sea Isle for fostering a policy which resulted in the constitutional violations by the police force.

After discovery, the plaintiffs filed a motion for summary judgment. The defendant officers and the City then filed their own motion for summary judgment. On March 7, 1996, the district court entered an order, accompanied by an opinion, denying the plaintiffs' motion and granting the defendants' motion in part.

The district court held that the police had probable cause to arrest, that the arrest occurred in a public place so no warrant was required, that the excessive force claim only involved an alleged injury to Ronald Sharrar's shoulder which could not be attributed to any of the defendants, and that the police's initial warrantless search of Bridgen's residence was an acceptable protective sweep. As for the second more extensive search, the court referred to it as a warrantless search, and did not find any exceptional circumstances present to justify conducting a warrantless search. Dist. Ct. Op. of March 7, 1996 at 14. It held, however, that the only named defendants who were implicated in this search were Sgts. Larkin and Kennedy and declined to grant summary judgment for plaintiffs as to these defendants because there was a genuine issue of material fact as to whether they were entitled to qualified immunity based on their belief that they had an oral search warrant. Finally, the district court granted summary judgment for the City, finding that the plaintiffs failed to present any evidence of a custom or policy of violating constitutional rights.

A magistrate judge presided over the jury trial which was held against Sgts. Larkin and Kennedy on the claim involving the second search. Following the presentation of evidence, plaintiffs filed a Motion for Judgment as a Matter of Law on the issue of qualified immunity, which the magistrate judge denied. The magistrate judge then submitted the illegal search claim to the jury along with special interrogatories. The jury found that the search of the premises was unlawful but returned a verdict in favor of the defendants, finding that Sgt. Larkin had a good faith belief that he was authorized to search the premises and that Sgt. Kennedy was not liable because he did not enter and search Brigden's residence.

II. SUMMARY JUDGMENT

We exercise plenary review over a district court's order granting summary judgment, applying the same test as the district court 7should use in the first instance, to determine if there are any issues of material fact which would allow the issue to go to trial. See Fed. R. Civ. P. 56; Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997). The plaintiffs, as the non-moving parties, are entitled to every favorable inference that can be drawn from the record. Id.

A. The Arrests

1. Probable Cause

Plaintiffs first argue that there was no probable cause to arrest them or at least that it should have been a question for the jury. Probable cause is "defined in terms of facts and circumstances `sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.' " Gerstein v. Pugh, 420 U.S. 103, 111 (1975) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). This standard is meant to " `safeguard citizens from rash and unreasonable interferences with privacy' " and to provide "leeway for enforcing the law in the community's protection." Id. at 112 (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)).

We have stated that "[t]he determination that probable cause exists for a warrantless arrest is fundamentally a factual analysis that must be performed by the officers at the scene. It is the function of the court to determine whether the objective facts available to the officers at the time of arrest were sufficient to justify a reasonable belief that an offense [had been] committed." United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984), cert. denied, 471 U.S. 1018 (1985). A court must look at the "totality of the circumstances" and use a "common sense" approach to the issue of probable cause. Id. at 1205 (citing Illinois v. Gates, 462 U.S. 213 (1983)).

In a Section(s) 1983 action the issue of whether there was probable cause to make an arrest is usually a question for the jury, but "where no genuine issue as to any material fact exists and where credibility conflicts are absent, summary judgment may be appropriate." Deary v. Three Un-Named Police Officers, 746 F.2d 185, 192 (3d Cir. 1984). The question is for the jury only if there is sufficient evidence whereby a jury could reasonably find that the police officers did not have probable cause to arrest. Id. at 190.

Sgt. Felsing responded almost immediately to Gannon's 911 call and found her injured and bleeding. She identified her husband David Brigden as her attacker, stated that he was assisted by three other men, and also stated that they all left in a brown van to return to Brigden's residence. Sgt. Felsing then drove to Brigden's residence and saw a brown van parked in the driveway that was positively identified by the license tag as belonging to Brigden. Because of the close proximity to the alleged attack, both in time and distance, the police had probable cause to arrest Brigden, whom the victim had identified, and the three men who were still with Brigden on the reasonable inference that they were the same three men who had participated in the assault.

The plaintiffs argue that Gannon's initial identification of "Robert Carroll" as her assailant was enough to undermine her credibility in the eyes of the police and creates a genuine issue whether the police had probable cause to arrest based on her subsequent identification of Brigden. They cite authority which they claim required the police to assess her reliability.

The cases on which plaintiffs rely involve informers, not victims. "[T]he skepticism and careful scrutiny usually found in cases involving informants, sometimes anonymous, from the criminal milieu, is appropriately relaxed if the informant is an identified victim. . . ." Easton v. City of Boulder, 776 F.2d 1441, 1449 (10th Cir. 1985), cert. denied, 479 U.S. 816 (1986). The district court explained, and we agree, that "[t]he cloistered nature of domestic violence is such that the testimony of the battered spouse and the injury itself may be the only evidence available to establish probable cause." Dist. Ct. Op. at 8.

Furthermore, there is no evidence that Sgt. Felsing heard Gannon's initial claim that Robert Carroll attacked her. Even if he had heard, it was reasonable for Sgt. Felsing to assess Gannon's demeanor, find her story credible, and rely on her subsequent identification of her husband as the attacker. When a police officer has received a reliable identification by a victim of his or her attacker, the police have probable cause to arrest. See Torchinsky v. Siwinski, 942 F.2d 257, 262 (4th Cir. 1991) ("It is surely reasonable for a police officer to base his belief in probable cause on a victim's reliable identification of his attacker."); Grimm v. Churchill, 932 F.2d 674, 675 (7th Cir. 1991) ("When an officer has received his information from some person-- normally the putative victim or an eye witness--who it seems reasonable to believe is telling the truth, he has probable cause." (internal quotations omitted)).

Ronald Sharrar, Kenneth Sharrar and Gerard Sweeney argue that even if there was probable cause to arrest David Brigden based on Gannon's identification, there was not sufficient evidence to arrest them. They cite the Supreme Court decision in Ybarra v. Illinois, 444 U.S. 85, 91 (1979), for the proposition that "mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause. . . ." In Ybarra, a search warrant was issued to search a bar on the suspicion that a bartender was involved in drug sales. The police arrived and frisked all patrons based solely on their presence at the public tavern. Ybarra, a patron, sought to exclude evidence which was recovered from his person during this search. The Supreme Court held that ...


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