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Mellott v. Heemer

November 05, 1998

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



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 94-02071)

Before: Alito, Rendell, and Garth, Circuit Judges

The opinion of the court was delivered by: Alito, Circuit Judge

Argued: April 27, 1998

(Opinion Filed: November 5, 1998)

OPINION OF THE COURT

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.

I.

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 byfiling 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 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).*fn1 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 ...


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