Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
3-22-1995
Baker v Monroe Township
Precedential or Non-Precedential:
Docket 94-5069
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 94-5069
_______________
INEZ BAKER, individually and as Guardian
ad Litem of Tiffany Baker; TIFFANY BAKER;
COREY BAKER; and JACQUINE ANDERSON (suing
in their own right if of majority),
Appellants
v.
MONROE TOWNSHIP; OFFICER ROBERT ARMSTRONG
(individually and officially); JOHN DOES
1-8 (officers of the Monroe Township
Police Department, individually and in
their official capacity); JOHN DOES 9-12
(officers of the U.S.D.E.A., individually
and in their official capacity); JOHN
DOES 13-16 (law enforcement officers
acting individually and in their official
capacity); all jointly and severally liable
in both individual as well as official
capacities,
Appellees
_________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 92-cv-03203)
_________________________________________________
Argued: August 12, 1994
Before: BECKER, ALITO, Circuit Judges, and
JOHN R. GIBSON, Senior Circuit Judge*
(Filed March 22, 1995)
*
The Honorable John R. Gibson, United States
Senior Circuit Judge for the Eighth
Circuit Court of Appeals, sitting
by designation.
JEFFREY A. LIBERT, ESQUIRE (ARGUED)
ANGELO J. FALCIANI, ESQUIRE
29 South Broad Street
Woodbury, NJ 08096
Attorneys for Appellants
SUSANNA J. MORRIS, ESQUIRE (ARGUED)
Budd, Larner, Bross, Rosenbaum,
Greenberg & Sade
200 Lake Drive East
Woodland Falls Corporate Park
Suite 100
Cherry Hill, NJ 08002
Attorney for Appellees
_____________________________
OPINION OF THE COURT
_____________________________
JOHN R. GIBSON, Senior Circuit Judge:
Inez Baker, her two children, Corey and Tiffany Baker,
and her foster daughter, Jacquine Anderson, appeal from a summary
judgment against them in their 42 U.S.C. § 1983 (1988) claim
against Monroe Township, Robert Armstrong, a Monroe Township
police officer, and numerous John Doe defendants who were police
officers or federal Drug Enforcement Agency agents. The Baker
family alleges illegal search and seizure of their persons and
property and use of excessive force, which occurred as the family
group approached the home of Mrs. Baker's son, Clementh Griffin,
just as police were commencing a drug raid there. The district
court entered judgment for Monroe Township and for Armstrong,
holding that the Bakers made no showing that either of these
defendants was legally responsible for any violation of the
Bakers' rights that may have occurred. The district court also
refused to allow the Bakers to amend their complaint to correct
the names of the John Doe defendants, and refused to reconsider
the summary judgment ruling based on an affidavit that was filed
out of time under the local rules. We reverse and remand on the
issue of whether the Bakers showed evidence that could render
Armstrong personally liable for the alleged civil rights
violations and also remand for consideration of whether Tiffany
Baker should be permitted to amend to correct fictitious names.
Around 8:30 on the evening of Friday, June 1, 1990,
Mrs. Baker, Corey, Tiffany, and Jacquine were approaching the
home of Clementh Griffin, Mrs. Baker's son, and his girlfriend,
Cheryl Woods, who had invited them to dinner. It was still light
outside, though dusk. At the same time, police from three
jurisdictions were launching a drug raid on the same apartment,
authorized by a "no-knock" warrant.1 As the Bakers walked up to
1
The warrant consisted of a form authorizing search of:
"the (x) premises (x) person (x) vehicle described below"
(emphasis added). Though x's were filled in each of the three
blanks, the space for the promised description contained only an
identification of the premises to be searched and mentioned
nothing about any persons. Although the dissent, infra at 8-9,
considers this a warrant for search of specified persons, the
only common-sense interpretation of the document is that no one
ever bothered to complete it to include specified persons as well
as premises. This flawed document does not demonstrate that the
magistrate determined search of any particular person to be
justified.
The "description below" referred only to an apartment in a
three story wood frame residence. There is no description,
the door, they were suddenly surprised by officers running past
them with guns in their hands, shouting, "Get down." Some of the
officers (including Armstrong) ran directly into the house, but
others forced the Bakers down to the ground. The Bakers
testified that the officers pointed guns at them, handcuffed them
and left some of them handcuffed for as much as twenty-five
minutes, searched Corey Baker, and emptied Mrs. Baker's
pocketbook onto the ground outside the apartment. After the
Bakers identified themselves as relatives of Clementh Griffin,
the police released them.
general or specific, of any person as in the warrant we
considered in United States v. Ferrone, 438 F.2d 381, 389 (3d
Cir.), cert. denied, 402 U.S. 1008 (1971). Nor did the language
in the description refer to a place and any or all "persons found
therein" as did the warrants before the courts in State v. Sims,
382 A.2d 638, 642 (N.J. 1978), and State v. DeSimone, 288 A.2d
849, 850 (N.J. 1972). The Fourth Amendment requires that the
warrant particularly describe the place to be searched and the
persons to be seized. The face of the warrant demonstrates its
failure to meet the requirement of the Fourth Amendment. The
dissent engages in a lengthy interpretation of the warrant to
find authorization for a search of persons found on the premises.
The dissent then proceeds to analyze Sims and DeSimone, cases
which specifically referred to persons on the premises, to
include a question of probable cause. This elaborate
interpretation and analysis and the length to which the dissent
goes in developing it simply point up the inadequacy of the
warrant to describe any person generally or specifically. Having
said as much, we need not speculate further as to whether the
dissent's interpretation would cover not only persons found on
the premises, but those outside the premises and on the sidewalk
and steps leading into it. It is also evident that the dissent
makes its interpretation and bases its analysis on the facts
taken in the light most favorable to the party moving for summary
judgment rather than the non-movant, contrary to the constraints
we have referred to that guide us in reviewing an order granting
summary judgment. Infra at 7.
The Bakers brought this action under 42 U.S.C. § 1983,
alleging, inter alia, violations of their Fourth Amendment rights
by illegal seizure and use of excessive force. They specified
only Robert Armstrong and Monroe Township as defendants, using
fictitious names for sixteen other defendants whom they
identified as assisting in the raid.
Armstrong and Monroe Township moved for summary
judgment. The district court held that, assuming the Bakers'
Fourth Amendment rights were violated, the Bakers made no showing
that Armstrong either committed the violations personally,
directed someone else to commit them, or had knowledge of the
violations and acquiesced in them. Instead, the court stated,
the evidence indicated that Armstrong was inside the apartment
while the alleged violations took place outside the apartment.
Moreover, there was no evidence that Armstrong should have
trained the other officers to behave differently, for though he
was in charge of this particular raid, the other men were
employees of the federal Drug Enforcement Agency and the
Gloucester County Prosecutor's office, whom Armstrong could
expect to be adequately trained. Since Armstrong was the only
Monroe Township official involved in the raid, the district court
found no causal link between anything the Township did or did not
do and the harm alleged.
The Bakers then sought leave to amend their complaint
to correct the fictitious names of several of the officers they
allege participated directly in the rough treatment. The Bakers
brought this suit on June 1, 1992, the last day before expiration
of the two-year statute of limitations. Despite having received
in March 1993 the names of the officers involved in the raid, the
plaintiffs did not move to amend their complaint to correct the
fictitious names until after the district court had entered
summary judgment against them on November 5, 1993. At that
point, the district court ruled that the Bakers had not made the
requisite showing of diligence under New Jersey law, see Farrell
v. Votator Div. of Chemetron Corp., 299 A.2d 394 (N.J. 1973), and
that state law would not permit the relation-back of the Bakers'
amended complaint. Their claims would be time-barred, and so the
district court denied the Bakers' motion to amend their
complaint.
The Bakers moved for reconsideration of the summary
judgment against them, arguing that they asserted state law
claims that should not have been dismissed and that the court
erred in its ruling on the section 1983 claims. About three
weeks after their motion for reconsideration, they produced for
the first time the affidavit of Clementh Griffin, containing
evidence which was relevant to the elements the district court
earlier held were not established. The court ruled that the
Bakers filed their motion for reconsideration too late under the
local rules, General Rules for the District of New Jersey 12I,
and therefore denied the motion, except that it remanded the
state law claims to the state courts.
On appeal, the Bakers argue that the district court
erred in entering summary judgment against them and in denying
their motions for reconsideration and to amend their complaint to
correct the fictitious names.
I.
The district court did not abuse its discretion in
holding that the Bakers were not diligent in seeking to correct
the fictitious names in their complaint. However, the Bakers
argue that Tiffany and Corey Baker were minors at the time of the
events in question and that the statute of limitations has not
expired as to them.2 Though the Bakers' brief does not supply us
with Corey Baker's birth date, the defendants inform us that
Corey Baker reached majority in January 1991, some six months
after the events in question, and that the statute of limitations
has expired as to him. Once the defendants showed the applicable
limitation period had elapsed, Corey Baker had the burden to
prove the statute was tolled. Burlington County Country Club v.
Midlantic Nat'l Bank South, 538 A.2d 441, 443 (N.J. Sup. Ct.
1987). This he has failed to do. On the other hand, the
defendants concede that the statute "may" not have expired for
Tiffany Baker, who was born on December 1, 1974. We therefore
remand for the district court to determine whether Tiffany Baker
should be granted leave under Fed. R. Civ. P. 15 to amend her
complaint.
2
The evidence also indicates Jacquine was a minor at the
time of the events, but the plaintiffs do not mention this.
II.
We will not disturb the district court's refusal to
consider the Clementh Griffin affidavit. The Bakers argue that
the district court miscalculated the number of business days
between entry of its judgment and the motion to reconsider. Even
if this is true, the motion to reconsider only reiterated
arguments already before the court (except for the motion to
remand state law claims, which the court granted). The only
filing that would actually help the Bakers was the Griffin
affidavit, which was in itself essentially a new motion to
reconsider and which was filed well out of time. The district
court's ruling was warranted under the local rules.
III.
The merits of this case involve Fourth Amendment
questions of what police may lawfully do with persons who happen
to find themselves in the middle of a drug raid, and questions of
responsibility under section 1983 of supervisors and
municipalities for others' conduct.
We review the district court's entry of summary
judgment de novo, viewing the evidence in the light most
favorable to the nonmovant and giving the nonmovant the benefit
of all reasonable inferences. Spain v. Gallegos, 26 F.3d 439,
446 (3d Cir. 1994). When the movant has produced evidence in
support of his motion, the nonmovants cannot rest on their
pleadings, but must come forward with enough evidence to create a
material issue of fact. See id.
In order to render Armstrong personally liable under
section 1983, the Bakers must show that he participated in
violating their rights, or that he directed others to violate
them, or that he, as the person in charge of the raid, had
knowledge of and acquiesced in his subordinates' violations.3
See Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir.
1990); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
A municipality can only be liable under section 1983
when the municipality itself causes the violation. City of
Canton v. Harris, 489 U.S. 378, 385 (1989). The Bakers must show
that a policymaker for the Township authorized policies that led
to the violations or permitted practices that were so permanent
and well settled as to establish acquiescence. Simmons v. City
of Philadelphia, 947 F.2d 1042, 1064 (3d Cir. 1991), cert.
denied, 112 S. Ct. 1671 (1992); Andrews, 895 F.2d at 1480.
We reject the Bakers' argument that Monroe Township is
liable for the actions of police from other jurisdictions solely
by virtue of a failure to train those police. It is unreasonable
to expect Monroe Township to retrain officers from the County
prosecutor's office and the D.E.A., and the Bakers have produced
3
It is also possible to establish section 1983 supervisory
liability by showing a supervisor tolerated past or ongoing
misbehavior, see e.g. Stoneking v. Bradford Area Sch. Dist., 882
F.2d 720, 724-25 (3d Cir. 1989), cert. denied, 493 U.S. 1044
(1990); since the facts of this case do not implicate such a
theory, we need not belabor it.
no evidence showing that Monroe Township had reason to think such
a thing necessary.
The actions the Bakers complain of are best analyzed in
four aspects ranging from the least objectionable to the most.
A.
First, we consider Armstrong's order to the Bakers to
"Get down" as Armstrong ran into the Griffin-Woods apartment.
Armstrong freely admits that he shouted this order when he saw
the Bakers and that the other officers "followed suit," all
shouting the same command. Armstrong also specifically alluded
to this as the customary way of doing things: "Just from working
over the years, I know that the people I'm passing are going to
be secured, again, for their safety as well as our safety."
However, as Armstrong described the practice, it does not violate
the Fourth Amendment. Armstrong testified that it was necessary
to burst into the house without warning in order to prevent
people in the house from destroying evidence. He had a "no-
knock" warrant for this very reason. The Bakers were at the
doorstep as he ran in. He feared the raid could result in
violence, and considered it necessary to get the Bakers down on
the ground, partly to protect them from stray gunshots.
Armstrong also said that at the instant he encountered the
Bakers, he did not know whether the Bakers were coming to or
going from the house, nor did he know whether they were the very
people whose house he had a warrant to search. There is no doubt
but that the Bakers had some relationship to the apartment since
Corey was on the steps and the others were right behind.
Moreover, Armstrong testified that the presence of citizens
standing in the middle of the raid could prevent the police
officers from defending themselves, since they would not be able
to return fire in the midst of a crowd.
Under these circumstances, it was entirely reasonable
to order the Bakers to "get down," until the situation was under
control. Armstrong's order is justified under two lines of
Supreme Court cases. Under Michigan v. Summers, 452 U.S. 692
(1981), during execution of a search warrant, police can detain
the occupant of the house they have a warrant to search. This is
reasonable to protect the police, to prevent flight, and
generally to avoid dangerous confusion: "The risk of harm to
both the police and the occupants is minimized if the officers
routinely exercise unquestioned command of the situation." Id.
at 702-03. The dangerousness of chaos is quite pronounced in a
drug raid, where the occupants are likely to be armed, where the
police are certainly armed, and the nature of the suspected drug
operation would involve a great deal of coming and going by drug
customers. In his application for the warrant, Armstrong swore
that a concerned citizen advised that "numerous young adults and
children" were going to the apartment and he had confirmed this
personally by surveillance. Armstrong said he did not know
whether or not the Bakers were the occupants of the house.
Although Summers itself only pertains to a resident of the house
under warrant, it follows that the police may stop people coming
to or going from the house if police need to ascertain whether
they live there. See United States v. Moreno, 891 F.2d 247, 249
(9th Cir. 1989) (citing both Summers and Terry v. Ohio, 392 U.S.
1 (1968)).
The order to "get down" is also permissible under the
line of cases following Terry v. Ohio, 392 U.S. 1 (1968), which
permit an investigatory stop, not rising to the level of arrest,
in situations presenting less than probable cause. Under the
Terry cases, the reasonableness of the intrusion is the
touchstone, balancing the need of law enforcement officials
against the burden on the affected citizens and considering the
relation of the policeman's actions to his reason for stopping
the suspect. See United States v. Sharpe, 470 U.S. 675, 682-83
(1985); see generally United States v. Chaidez, 919 F.2d 1193,
1197-98 (7th Cir.), cert. denied, 501 U.S. 1234 (1991); United
States v. Trullo, 809 F.2d 108, 111 (1st Cir.), cert. denied, 482
U.S. 916 (1987). Here, the need to ascertain the Bakers'
identity, the need to protect them from stray gunfire, and the
need to clear the area of approach for the police to be able to
operate efficiently all made it reasonable to get the Bakers down
on the ground for a few crucial minutes. Armstrong's initial
order to "get down" and the other officers' actions in pushing
the Bakers down to the ground did not constitute a Fourth
Amendment violation, and therefore did not render Armstrong
himself or Monroe Township liable.
B.
Second, we consider the closer question of whether the
police detained the Bakers for an unconstitutionally long time.
As with the order to "get down," Armstrong admits that he was
aware the Bakers were being detained until they could be
identified and that this was consistent with his regular
practices. Under Sharpe, 470 U.S. at 685-86, there is no per se
rule about the length of time a suspect may be detained before
the detention becomes a full-scale arrest. Instead, the court
must examine the reasonableness of the detention, particularly
whether the police were diligent in accomplishing the purpose of
the stop as rapidly as possible. Here, the Bakers state they
were held a total of about twenty-five minutes, about ten minutes
outside and as long as fifteen minutes inside. Significantly,
Armstrong did not "holler" out the door for the others to bring
the Bakers inside until after the house had been "secured,"
meaning that police had located and gained control over the
people in the house. Armstrong testified that this took only a
"minute or two," but there is obviously a margin for error here;
it would be absurd to expect police in peril for their lives to
time their motions with a stop-watch. Given the uncertainty over
what would happen until the house was secured, it is not
surprising that the police could not begin sorting out who was
who for the first ten minutes. After they were brought in the
apartment, Tiffany Baker, Inez Baker and Armstrong all estimated
that fifteen minutes elapsed before the Bakers left. At least
part of that time was taken up with Armstrong delivering an
apology and explanation to Mrs. Baker for the detention.
(Armstrong said: "It was probably more time explaining what went
on in that fifteen minutes of detaining the Baker family than
anything else.") Under Sharpe when "police are acting in a
swiftly developing situation . . . court[s] should not indulge in
unrealistic second-guessing." 470 U.S. at 686. We cannot say
that a detention of fifteen minutes time to identify and release
a fairly large group of people during a drug raid is
unreasonable. Therefore, Armstrong's admission that the Bakers
were detained fifteen minutes inside and some amount of time
outside, taken alone, does not render him or Monroe Township
liable.
C.
Third, we consider the use of guns and handcuffs. The
district court concluded that the Bakers' depositions do not
indicate Armstrong personally used guns or handcuffs, nor that he
directed anyone else to do so. This conclusion is borne out by
the record. Armstrong was the senior officer in charge of
executing the warrant. Corey Baker testified that as he stood on
the doorstep, Armstrong ran past him, into the house. Then,
while the Baker family was still outside, others pointed guns at
them, pushed them down to the ground and handcuffed them. Other
police brought Clementh Griffin and Cheryl Woods outside, but
Tiffany Baker could not say whether Armstrong came outside.
After the Bakers had been held outside for a few minutes, police
brought them into the house. They left all the family but Corey
in the kitchen. Police took Corey into the bedroom and searched
him, but Corey specifically said Armstrong was not involved in
the search. Mrs. Baker said that she saw Armstrong for the first
time while inside the apartment and that he came into the kitchen
and told the other officers to unhandcuff her and remove the gun
that was pointed at her. Tiffany Baker said she never saw
Armstrong until they were outside, after they had been released
and were leaving. No testimony indicates Armstrong participated
personally in the hand-cuffing or gun-point detention.
There is no per se rule that pointing guns at people,
or handcuffing them, constitutes an arrest. See, e.g., United
States v. Hastamorir, 881 F.2d 1551, 1557 (11th Cir. 1989) (use
of handcuffs and gun during investigatory stop); United States v.
Trullo, 809 F.2d at 113 (use of gun during investigatory stop);
United States v. Eisenberg, 807 F.2d 1446, 1451 (8th Cir. 1986)
(same); United States v. Hardnett, 804 F.2d 353, 357 (6th Cir.
1986) (same), cert. denied, 479 U.S. 1097 (1987); see generally
United States v. Chaidez, 919 F.2d at 1198. But use of guns and
handcuffs must be justified by the circumstances, as in the cases
listed. Moreover, we must look at the intrusiveness of all
aspects of the incident in the aggregate. In this case, adding
up the use of guns and handcuffs and, indeed, the length of the
detention, shows a very substantial invasion of the Bakers'
personal security. See United States v. Del Vizo, 918 F.2d 821
(9th Cir. 1990) (drawing weapon on cooperative suspect, ordering
him to lie prone, and handcuffing amount to arrest). Armstrong
himself said that the use of handcuffs would have been
inappropriate until there was an arrest, and that the other
officers with him work the same way. Here, accepting the Bakers'
testimony, the police used all of those intrusive methods without
any reason to feel threatened by the Bakers, or to fear the
Bakers would escape. It was dusk but still daylight as Mrs.
Baker, Corey and Jacquine, both age 17, and Tiffany, age 15,
approached the apartment. Considering the facts in the light
most favorable to the Bakers, the appearances were those of a
family paying a social visit, and while it may have been a visit
to a wayward son, there is simply no evidence of anything that
should have caused the officers to use the kind of force they are
alleged to have used. If Armstrong acquiesced in the other
officers' use of guns and handcuffs and if those actions were
such as the Bakers describe, the testimony, while conflicting,
would support a finding that Armstrong violated the Bakers'
Fourth Amendment rights.
Although Armstrong did not personally use excessive
force or order its use, we conclude that there is sufficient
evidence to permit an inference that Armstrong knew of and
acquiesced in the treatment the Bakers were receiving at the
hands of the other officers acting under his supervision. The
Bakers said they were handcuffed while outside. Armstrong said
he "hollered" out the door of the apartment "to bring those
people in." Tiffany Baker testified that they were brought into
the kitchen and her testimony is sufficient to support a finding
that the Baker women sat in the kitchen for about ten minutes in
handcuffs. Mrs. Baker said a gun was pointed at her head. Corey
Baker was taken to a bedroom in handcuffs and was searched. He
testified that he remained handcuffed after he had returned to
the kitchen and for some five minutes more until he was told it
was all right to leave. Tiffany Baker also testified that Corey
had his handcuffs on until the Bakers were released and told to
go outside. It was a small apartment.4 Armstrong stated that
there was an open doorway from the room in which he was speaking
to Clementh to the kitchen or dining room where the Bakers were.
These few facts, taken together, are sufficient to allow a
factfinder to infer that Armstrong was aware of how the Bakers
were being treated, but permitted that treatment to continue for
some amount of time before he stopped it.
This evidence satisfies at the summary judgment stage
the standard our cases require for supervisory liability, that is
"actual knowledge and acquiescence." Rode v. Dellarciprete, 845
F.2d at 1207; Andrews, 895 F.2d at 1478.5 We believe that actual
knowledge can be inferred from circumstances other than actual
4
Armstrong stated that the apartment had only three rooms
and a bath. Corey Baker's testimony indicates that there was a
living room, kitchen, and more than one bedroom.
5
We note that other circuits have developed broader
standards for supervisory liability under section 1983. For
example, the Eighth Circuit has held that "actual knowledge is
not an absolute prerequisite" and that "reckless disregard on the
part of a supervisor will suffice." Hall v. Lombardi, 996 F.2d
954, 961 (8th Cir. 1993) (quoting Howard v. Adkison, 887 F.2d
134, 138 (8th Cir. 1989)), cert. denied, 114 S.Ct. 698 (1994).
See Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 92 (1st
Cir. 1994); Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir.
1986).
sight.6 In this case we think the inference of knowledge could
arise from Armstrong's "hollering" instructions outside to others
who were holding the Bakers in handcuffs and at gunpoint; and his
presence in a small apartment where the Baker women were being
held in one room and Corey Baker was undergoing a protracted
search in another. In sum, this evidence is sufficient to
withstand defendants' request for summary judgment.
The Bakers have not shown that Armstrong was a
policymaker for Monroe Township, and they have not shown any
evidence of Monroe Township practices regarding handcuffing
people found at the site of a search or pointing guns at them.
Their accounts of what happened in this particular case do not
establish a custom or usage. City of Canton, 489 U.S. at 1206.
To the extent the record reveals any policy or custom of Monroe
Township regarding handcuffs or pointing guns, it exonerates the
Township, for Officer Armstrong stated that it would not have
been appropriate to handcuff the Bakers, and denied knowing that
anyone had handcuffed the Bakers or pointed guns at them.
Moreover, he expressed the belief that his approach would have
been widely shared by other police. The Bakers have failed to
show that Monroe Township caused their injuries.
D.
6
Although bound by Third Circuit precedent, we believe that
the dissent takes too narrow a view of actual knowledge,
apparently contending that Armstrong had to actually see the
activities to have actual knowledge of them.
Finally, we reach the search of Corey Baker and of Mrs.
Baker's purse. Corey Baker said he was taken into a back room
and searched. He said: "They searched me, took my wallet out of
the back pocket and went all through it, and they made me take
off my shoes, checked down inside, checked my socks and stuff."
He said he was forced to take his shirt off and that police went
through his pants pockets. Mrs. Baker said her "pocketbook was
snatched and emptied out on the ground" while she was still
outside.
As we have said, the actions to control the Bakers
while the search warrant was executed were justified under
Michigan v. Summers and Terry. A search of Corey's and Mrs.
Baker's persons is not supported by either line of cases. The
Supreme Court has recently reiterated that when a protective
search goes beyond a search for weapons and becomes a search for
evidence, it is no longer valid under Terry. Minnesota v.
Dickerson, 113 S. Ct. 2130, 2136 (1993). The alleged actions in
this case were full-scale searches for evidence, having nothing
to do with a limited Terry-frisk, and having no probable cause
justification. These allegations constitute Fourth Amendment
violations.
As with the use of excessive force, the key question
about the searches is whether Armstrong and Monroe Township were
responsible. Armstrong denies that the Bakers were subjected to
even a limited Terry-frisk.
Q: Were Mrs. Baker or her children subject
to any type of body search while they're
in the house?
A: No, sir.
Q: Would it have been routine that they
would have been subject to any type of
pat-down search?
. . . .
A: No, sir.
Q: Would it have been routine for the
officers securing them to have searched
their pocketbooks?
A: No, sir.
However, as with the handcuffing and use of guns, we
conclude that there is a conflict in testimony as to Armstrong's
knowledge about the search of Corey Baker. Corey testified that
police took him through the kitchen and the living room to the
first bedroom, where they searched him for five to ten minutes.
Police went through his wallet, made him take off his shoes and
shirt, and checked his socks. Armstrong's mere presence in this
small apartment where Corey Baker was undergoing this protracted
search was sufficient to permit an inference that he was aware of
the evidentiary search. Therefore, the district court erred in
entering summary judgment for Armstrong on this claim.
On the other hand, the search of Mrs. Baker's
pocketbook occurred outside, while Armstrong was inside securing
the apartment. We do not believe Armstrong can be held
accountable for this search, for the evidence does not support
the inference that Armstrong knew what was happening outside the
apartment. Consequently, Armstrong was entitled to judgment on
Mrs. Baker's search claim.
As with the handcuffing and use of guns, we see no
evidence that Monroe Township expressly or tacitly authorized
either of the searches. Therefore, there can be no liability as
to the Township.
IV.
We reverse and remand for trial on the issue of whether
Armstrong acquiesced in the alleged use of excessive force (in
handcuffing the Bakers and pointing guns at them) and in the
search of Corey Baker, and for the district court to consider
whether Tiffany Baker should be granted leave to amend her
complaint under Rule 15. In all other respects, we affirm the
judgment of the district court.
Baker v. Monroe
No. 94-5069
Alito, Circuit Judge, concurring and dissenting.
I join parts I, II, IIIA, and IIIB of the opinion of
the court. I cannot, however, join parts IIIC and IIID, which
reverse the award of summary judgment in favor of Monroe Township
Police Office Robert Armstrong with respect to the plaintiffs'
claims regarding the search of Corey Baker and the alleged use of
excessive force during the Bakers' detention. In my view, a
careful analysis of the applicable law and the summary judgment
record reveals that the district court's award of summary
judgment with respect to these claims should be affirmed.
1.
On June 1, 1990, Armstrong applied for a "no knock"
warrant to search an apartment in Williamstown, New Jersey, "and
persons found therein." App. at 248-51. In support of this
application, Armstrong submitted an affidavit stating: that on
May 24, 1990, a confidential informant told him that Cheryl Woods
and her boyfriend, "Clem" (later identified as Inez Baker's son
Clementh Griffin), were distributing cocaine from this apartment;
that on May 27 Armstrong sent a confidential informant into the
apartment to make a controlled purchase of cocaine from Cheryl
Woods and that the confidential informant did so; that on May 29
a concerned citizen informed Armstrong that "numerous young
adults and juveniles" had been going into the apartment to
purchase cocaine; and that on May 31 Armstrong conducted a short
surveillance of the apartment and observed young people entering
and leaving the apartment in a manner that, in Armstrong's
experience, was indicative of drug distribution activity. Id.
Armstrong's application was granted, and the court issued a "no-
knock" warrant. Id. at 147.
At about 8:25 p.m. that evening, Armstrong and a team
of officers under his direction executed the warrant. Id. at 63,
95. Armstrong identified the other officers as Sergeant R.
Ferris and Lieutenant T. Watson of the Gloucester County
Prosecutor's Office and Special Agents K. Donnelly and J.
Vitaletti of the federal Drug Enforcement Administration. Id. at
59-60. Upon arriving at the apartment, the officers quickly left
their unmarked van and ran toward the door with their guns drawn.
Id. at 46, 62-64. At precisely the time when the officers
arrived, the plaintiffs in this case were on or near the steps of
the apartment. Corey Baker, age 17, was on the steps. Tiffany
Baker, age 15, was behind him at the bottom of the steps,
followed by her older sister, Jacquine Anderson, and their
mother, Inez Baker (collectively "the Bakers"). Id. at 62, 65,
119, 129. Armstrong was the first of the officers to leave the
van and reach the door of the apartment. Id. at 62, 65-66. He
stated that when he saw the Bakers he could not tell whether they
were arriving at or leaving the apartment and that he had no idea
who they were or what their connection might be with the
apartment. Id. at 78-79, 85. He added that he did not know
whether one of them might be Cheryl Woods and that he thought
that one of them might possibly be armed. Id. at 75, 79. As
Armstrong neared the Bakers, he shouted for them to get down.
Id. at 62. He then ran past them and entered the apartment. Id.
at 62, 66, 131.
Some of what happened next outside the apartment is in
dispute. In his deposition, Armstrong stated that two of the
officers remained outside with the Bakers. Id. at 77. In their
depositions, the Bakers agreed that some officers (not including
Armstrong) remained outside, but the Bakers estimated that as
many as 20 officers participated in the raid. Id. at 119, 123,
129, 131. The Bakers stated that some of the officers who
remained outside (none of whom apparently were deposed)
handcuffed them, kept them on the ground, and pointed guns at
them. Id. at 120-23, 131-32. In addition, Inez Baker stated
that one of these officers took her purse, emptied its contents
on the ground, examined the contents, put them back in the purse,
and then returned the purse to her. Id. at 117.
Inez Baker estimated that she and the children
accompanying her remained outside the apartment for about ten
minutes. Id. at 366. There is no evidence that Armstrong was
present outside the apartment at any time during this period.
Nor is there any evidence that Armstrong looked out at the area
where the Bakers were held, that he would have been able to see
the Bakers from inside the apartment through any door or window,
or that he had any communications during this period with any of
the officers who were outside.
While the Bakers remained outside the apartment,
Armstrong and the other officers who had entered secured the
premises and its occupants, Cheryl Woods and Clementh Griffin.
Id. at 67, 98, 115-16, 122. According to Armstrong, he then
shouted out the door "to bring those people in." Id. at 98.
The Bakers were brought into the kitchen, which was the first
room reached through the door. Id. 71, 84, 112, 124-26. The
Bakers said that they were handcuffed when they were led into the
apartment, and Inez Baker said that one of the officers pointed a
gun at her during this time. Id. at 112-14, 123-25, 132.
However, none of the Bakers said that Armstrong was in the
kitchen when they were brought in. Id. at 113. Corey Baker
stated that he was taken through the kitchen and living room to
the first bedroom. Id. at 132. There, he said, several officers
(not including Armstrong) subjected him to a thorough search
before they returned him to the kitchen. Id. at 134-35.
Armstrong stated that after the Bakers were brought in,
he went to the kitchen, spoke to Inez Baker, and explained why
she and the children accompanying her had been ordered to get
down. Id. at 68-69. At this point, he said, he still did not
know who the Bakers were. Id. He stated that he then went to
another room and was speaking with Clementh Griffin when he heard
something that Inez Baker was saying. Id. at 69. According to
Armstrong, he asked Sergeant Ferris who Inez Baker was and was
told that she was Clementh Griffin's mother. Id. Armstrong
stated that he asked Clementh Griffin whether his mother and the
other Bakers had "anything to do with what may be found in [the]
house," and Griffin answered "no." Id. Armstrong said that he
then went back to the kitchen, explained to Inez Baker what had
occurred, apologized for the inconvenience, and told her that she
and her children (other than Clementh Griffin) were free to go.
Id. Similarly, Inez Baker said that, after she and the children
accompanying her had been kept in the kitchen for some time,
Armstrong came out of another room and said that they should be
released. Id. at 114. She and Armstrong both estimated that
about 15 minutes had then elapsed from the time when she had been
brought into the apartment. Id. at 71, 115.
Armstrong said that he never saw Inez Baker in
handcuffs. (He does not appear to have been asked whether he ever
saw the other Bakers in handcuffs.) Armstrong also stated that
he never saw guns pointed at any of the Bakers. Id. at 67-68,
70.
II.
Search of Corey Baker. Summary judgment was properly
entered in favor of Armstrong on this claim for two separate
reasons.
A. First, the terms of the search warrant doom this
claim. The warrant (which is reproduced in full as an appendix
to this opinion) consisted of a printed form with typewritten
entries (possibly made prior to the submission of the application
to the judge) and handwritten entries (apparently made by the
judge).7 Paragraph one recited that Armstrong had applied "for a
search warrant for the (x) premises (x) person (x) vehicle
described below." App. at 147. Paragraph two commanded
Armstrong and other officers "to search the (x) premises
described below (x) person(s) described below (x) vehicle
described below." Id. Paragraph 4 stated:
The following is a description of the (x) premises, (x)
person, (x) vehicle to be searched:
an apartment located in an apartment building at 607
South Main Street, Williamstown, New Jersey, a three
(3) story wood frame residence located on the corner of
South Main Street and Virginia Avenue, having a parking
lot on the Virginia Avenue side and directly across the
street from the Williamstown Fire Company.
Id.
To my mind, by far the best interpretation of these
provisions of the warrant is that they authorized a search of,
not only the premises of the apartment, but also any persons
found on the premises. That the judge who signed the warrant
intended to authorize a search of some person or persons seems
perfectly clear, since the space for "person(s)" in paragraph 2
and the space for "person" in paragraph 4 were both marked with
x's. (Are we to assume that both these x's were mistakes?) The
only remaining question, then, is the identity of the person or
persons who were to be searched, and even if we look only at
paragraph 4, the answer to this question seems reasonably plain.
7
In the quotations from the warrant that appear below, the
printed text is in regular type, and the typewritten text is
underlined.
Since paragraph 4 is supposed to describe "premises,"
"person[s]," and "vehicle[s]," but expressly refers only to the
premises of the apartment, the most reasonable interpretation is
that the warrant authorized a search of the premises and any
persons or vehicles found on the premises.
This interpretation is reinforced by paragraphs one and
two of the warrant and the warrant application. As previously
noted, Armstrong applied for authorization to search the premises
of the apartment "and persons found therein." Id. at 251.
Paragraph one of the warrant, which paraphrased the terms of
Armstrong's application, stated that he had applied "for a search
warrant for the (x) premises [and] (x) person(s) . . . described
below." Id. at 147. Thus, paragraph one clearly equated the
phrase "persons found therein" with the phrase "persons . . .
described below." Paragraph two then authorized a search of the
"(x) premises [and] (x) person(s) . . . described below." Id.
Consequently, paragraph two authorized precisely what, according
to paragraph one, Armstrong sought -- and that was permission to
search the premises "and persons found therein." Id. at 25.
For these reasons, I believe that the warrant
authorized a search of any persons found on the premises. This
interpretation is consistent with all of the language of the
warrant, and it gives effect to and harmonizes all of the
warrant's provisions. I acknowledge, of course, that it would
have been better draftsmanship to have referred specifically in
paragraph 4 to any persons found on the premises, but for
practical purposes the scope of the search that was authorized
seems to me quite apparent.
The majority's alternative interpretation is completely
unpersuasive. The majority writes:
[T]he only common-sense interpretation of the [warrant]
is that no one ever bothered to complete it to include
specified persons as well as premises. This flawed
document does not demonstrate that the magistrate
determined search of any particular person to be
justified.
Maj. typescript at 3 n.1. From this paragraph, I take it that
the majority believes that the municipal judge intended to
authorize a search of named persons but neglected to ensure that
the names of these persons were included in the warrant.
However, this interpretation requires the assumption that the
judge made a serious and basic error. Moreover, this
interpretation is completely inconsistent with the search warrant
application, which did not request authorization to search any
named persons but, instead, sought permission to search "any
persons found" on the premises. Thus, in order to accept the
majority's interpretation, one must assume that the judge who
issued the warrant rejected Armstrong's request for authorization
to search any persons found on the premises, decided instead to
authorize a search of named individuals (although such
authorization had not been sought), and then forgot to ensure
that these individuals were identified in the warrant. This
interpretation, far from being "the only common-sense
interpretation" of the warrant, seems to me far-fetched.
After advancing this interpretation of the warrant, the
majority contends that if the warrant were interpreted to
authorize the search of any person or persons it would violate
the Fourth Amendment's particularity requirement.8 After noting
that the warrant did not name any particular person or persons,
the majority continues:
Nor did the language in the description refer to a
place and any or all "persons found therein" as did the
warrants before the courts in State v. Sims, 382 A.2d
638, 642 (N.J. 1978) and State v. DeSimone, 288 A.2d
849, 850 (N.J. 1972). The Fourth Amendmnet requires
that the warrant particularly describe the place to be
searched and the persons to be seized. The face of the
warrant demonstrates its failures to meet the
requirement of the Fourth Amendment.
Id. This argument is wrong and is not supported by either State
v. Sims, 382 A.2d 638, 642 (N.J. 1978), or State v. DeSimone, 288
A.2d 849, 850 (N.J. 1972).
Sims involved the application of legal principles
articulated in DeSimone. There, the New Jersey Supreme Court
rejected the argument that a warrant authorizing a search of all
persons found on described premises violated the Fourth
Amendment's particularity requirement. Writing for the court,
Chief Justice Weintraub observed:
With regard to the Fourth Amendment demand for
specificity as to the subject to be searched, there is
none of the vice of a general warrant if the individual
is thus identified by physical nexus to the ongoing
criminal event itself. In such a setting, the officer
executing the warrant has neither the authority nor the
8
The Fourth Amendment, of course, provides that warrants
shall not be issued unless "supported by Oath or affirmation, and
particularly describing the place to be searched and the persons
or things to be seized" (emphasis added).
opportunity to search everywhere for anyone violating a
law. So long as there is good reason to suspect or
believe that anyone present at the anticipated scene
will probably be a participant, presence becomes the
descriptive fact satisfying the aim of the Fourth
Amendment. The evil of the general warrant is thereby
negated. To insist nonetheless that the individual be
otherwise described when circumstances will not permit
it, would simply deny government a needed power to deal
with crime, without advancing the interest the
Amendment was meant to serve.
288 A.2d at 850.
Instead of presenting a "particularity" question,
Chief Justice Weintraub wrote, a warrant authorizing a search of
any person found on described premises presents a question of
probable cause:
On principle, the sufficiency of a warrant to search
persons identified only by their presence at a
specified place should depend upon the facts. A
showing that lottery slips are sold in a department
store or an industrial plant obviously would not
justify a warrant to search every person on the
premises, for there would be no probable cause to
believe that everyone there was participating in the
illegal operation. On the other hand, a showing that a
dice game is operated in a manhole or in a barn should
suffice, for the reason that the place is so limited
and the illegal operation so overt that it is likely
that everyone present is a party to the offense. Such
a setting furnishes not only probable cause but also a
designation of the persons to be searched which
functionally is as precise as a dimensional portrait of
them.
Id.
This analysis is specifically approved in Professor
LaFave's treatise:
Unquestionably, the DeSimone rationale is correct. A
search warrant authorization to search all persons
found within a specifically described place is not
lacking in particularity in the sense that the
executing office will be unable readily to determine to
whom the warrant applies. Rather, the question is
whether there is sufficient particularity in the
probable cause sense, that is, whether the information
supplied the magistrate supports the conclusion that it
is probable anyone in the described place when the
warrant is executed is involved in the criminal
activity in such a way as to have evidence thereof on
his person. If the evidence tendered to the magistrate
supports such a conclusion, then the search-all-
persons-present warrant is unobjectionable. If the
evidence does not support such a conclusion, then the
searches of those present find no justification in the
search warrant.
2 Wayne R. LaFave, Search and Seizure § 4.5e at 231 (1987)
(footnotes omitted).
I agree with DeSimone and with Professor LaFave's
analysis, and I therefore think that the validity of the warrant
at issue in this case depends on whether the search warrant
application established probable cause to believe that all
persons found on the premises of the apartment were involved in
the regular drug activity that had been going on at that
location. The majority says nothing with respect to this
question, but I believe that the requisite probable cause was
shown.
The holdings in State v. DeSimone, supra, and State v.
Sims, supra, both of which seem to me to be correct, serve to
frame the question presented by the warrant involved here. In
DeSimone, the police had probable cause to believe that a
particular car was regularly used to drop off "policy" slips, a
warrant was issued to search the car and "all persons found
therein," and the New Jersey Supreme Court upheld the warrant,
observing that there was probable cause to believe that any
person found in the car "whether driver or passenger would be
involved in the criminal operation." 288 A.2d at 854. In Sims,
by contrast, the police intercepted a single telephone call to a
service station owned by "one Robert (Bob) Quinlan," and during
this call "[t]he caller placed two illegal horse bets with a
person identifying himself as Bob." 382 A.2d at 641. A warrant
was issued to search all persons found in the station, but the
New Jersey Supreme Court concluded that there was no "probable
cause to believe that all persons who might be found on the
premises of the service station were engaged in illegal
gambling." Id.
In the case now before us, the police had evidence that
the apartment had been the scene of frequent drug sales to a
large number of buyers for some time. Thus, there was probable
cause to believe that anyone living in the apartment was involved
in this activity. There was also a good likelihood that visitors
to the apartment were drug buyers. While it was certainly
possible that there would also be some innocent visitors to the
apartment (such as the Bakers), I think that there was probable
cause to search anyone found on the premises.
There is considerable authority supporting this
conclusion. In the Commonwealth v. Smith, 348 N.E.2d 101 (Mass.
1976), the Supreme Judicial Court of Massachusetts upheld a
provision of a warrant authorizing a search of any person found
in an apartment. The affidavit submitted in support of the
warrant stated that an informant had recently seen heroin sales
within the apartment and that police officers conducting a
surveillance of the apartment had seen known drug traffickers
entering and leaving. Id. at 106. "From these asserted facts
and fair inferences drawn therefrom," the court stated, "it was
permissible to conclude that it was probable that any person in
the apartment was a participant in the trafficking in heroin
there." Id.
In State in Interest of L.Q., 566 A.2d 223 (N.J. Super.
Ct. App. Div. 1989), the court upheld a comparable warrant
provision based on facts strikingly similar to those present in
the case now before us. The warrant was issued based on an
affidavit stating that surveillance of the residence had revealed
comings and goings characteristic of drug sales and that a
controlled purchase of drugs had been made at the residence. Id.
at 223-24. The court wrote:
The evidence was sufficient to create a well-grounded
suspicion or belief that numerous sales of [drugs] were
being conducted in the premises. Although the
affidavit did not exclude the possibility of other
activities on the premises, the description of the
activity actually observed provided a firm foundation
for the suspicion or belief that any person in the
private premises was involved in the overt unlawful
activity of sale and possession of cocaine. Such a
suspicion or belief is not limited to persons already
there when the police arrive, but reasonably extends to
a person who enters the premises during the search.
Id. at 226 (footnote omitted).
The Superior Court of Pennsylvania has handed down
similar decisions. See Commonwealth v. Graciani, 554 A.2d 560,
561-62 (Pa. Super. 1989); Commonwealth v. Heidelberg, 535 A.2d
611, 615 (Pa. Super. 1987). So have courts in other
jurisdictions. See, e.g., Gonzales v. State, 761 S.W.2d 809, 811
(Tex. App. 1988); People v. Betts, 456 N.Y.S.2d 278, 279 (1982).
In accordance with these authorities, I conclude that the warrant
in this case was supported by probable cause to search any one
found on the premises.9
B. Moreover, even if the warrant did not authorize the
search of Corey Baker and that search was illegal, Armstrong was
still entitled to summary judgment pursuant to our court's well
established standard for individual liability in an action under
42 U.S.C. § 1983. In such an action, we have held, an individual
defendant is liable only if he or she has "personal involvement
in the alleged wrongs." Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988). "Personal involvement can be shown through
allegations of personal direction or of actual knowledge and
acquiescence." See also Keenan v. Philadelphia, 983 F.2d 459,
466 (3d Cir. 1992); Andrews v. Philadelphia, 895 F.2d 1469, 1478
(3d Cir. 1990).10 Id. Here, there is no suggestion in the
9
I do not reach -- and I do not read the majority opinion as
reaching -- the qualified immunity defense pled in Armstrong's
answer. See App. at 29; Anderson v. Creighton, 483 U.S. 635
(1987). The district court did not base its award of summary
judgment on this ground, and Armstrong did not raise this issue
on appeal as an alternative ground for affirmance. The majority
has not addressed this issue, and accordingly, any consideration
of this issue will have to await further proceedings.
10
Although the majority hints, see Maj. typescript at 14
n.5, that it likes the law of some other circuits better than our
own, the majority fails to show how the claims at issue here
could survive summary judgment under the precedents it cites.
The majority states that other circuits, rather than demanding
"actual knowledge," have held that "reckless disregard on the
part of a supervisor will suffice." Id. (quoting Hall v.
Lombardi, 996 F.2d 954, 961 (8th Cir. 1993)). However, the
summary judgment record that Armstrong personally directed the
other officers to search Corey Baker, and there is insufficient
evidence to show either his "actual knowledge" or "acquiescence."
As for actual knowledge, although the majority thinks
that a rational trier of fact could infer, based solely on the
small size of the apartment, that Armstrong was aware that the
search of Corey Baker was taking place, I am doubtful about
this.11 But in any event, even if a rational trier of fact could
infer that Armstrong was aware that Corey Baker was being
searched, I think that the "actual knowledge" requirement demands
something more -- viz., knowledge that the other officers lacked
a lawful basis for the search.
A simple hypothetical demonstrates the need for this
additional showing. Suppose a supervisory policy official
happened to observe subordinates from some distance while they
were carrying out a Terry frisk. If it turned out that this
frisk was unlawful because the frisking officers lacked
reasonable suspicion, could the supervisory official be held
liable under Section 1983 simply because he or she had actual
majority makes no effort to demonstrate that there is sufficient
evidence in the summary judgment record to establish that
Armstrong was reckless in failing to recognize that the other
officers were acting unlawfully and, as I attempt to show below,
Dissenting typescript at 15-19, I do not think that the summary
judgment record contains such evidence.
11
The search of Corey Baker would not necessarily have
taken a long time, and therefore unless Armstrong happened to
look into the bedroom where the search was allegedly taking place
during that relatively brief period, he would not have seen the
search.
knowledge that the frisk had occurred? I think the answer must
clearly be "no." If the supervisor did not know (or at least
have cause to know)12 that reasonable suspicion was lacking, the
supervisor should not be liable.
Here, there is no direct or circumstantial evidence
that Armstrong possessed such knowledge. All that the record
shows is that Armstrong had seen Corey Baker, a 17 year old, a
few steps from the door of an apartment believed to be a center
of cocaine sales to young people, that Corey Baker was then held
outside for perhaps ten minutes by other officers, and that
immediately thereafter Corey Baker was taken into the apartment
to the first bedroom and searched. From these facts, it cannot
reasonably be inferred that Armstrong knew (or should have known)
that the other officers did not have a legitimate basis for
searching Corey Baker -- such as consent or probable cause based
on a pat down or statements made by other persons on the scene.
Nor can it be inferred that Armstrong acquiesced in the allegedly
illegal conduct. Accordingly, the district court was correct in
granting summary judgment in favor of Armstrong on the claim
grounded on the search of Corey Baker.
12
As previously noted, our precedents require "actual," not
constructive knowledge. In the discussion above, I do not
suggest that constructive knowledge is sufficient. Rather, I
argue that it would be manifestly unjust to hold a supervisor
liable when he or she lacks even constructive knowledge.
III.
Excessive Force. I now turn to the claim based on the
use of excessive force during the Bakers' detention. The majority
holds -- and I agree -- that the detention of the Bakers during
the execution of the warrant was itself proper. The majority
concludes, however, that the Fourth Amendment was violated by the
use of handcuffs and guns during that detention and that the
evidence is sufficient to sustain a judgment against Armstrong
for this violation.
Claims that law enforcement officers used excessive
force in the course of an arrest or investigatory stop must be
analyzed under the "reasonableness" standard of the Fourth
Amendment. Graham v. Connor, 490 U.S. 386, 396 (1989). The
Supreme Court has explained:
Our Fourth Amendment jurisprudence has long recognized
that the right to make an arrest or investigatory stop
necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect
it. Because "[t]he test of reasonableness under the
Fourth Amendment is not capable of precise definition
or mechanical application," . . . however, its proper
application requires careful attention to the facts and
circumstances of each particular case. . . .
The "reasonableness" of a particular use of force must
be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of
hindsight.
Id. (citations omitted).
If an officer is making an arrest, it seems to me that
the use of handcuffs will always be reasonable. As for the use
of handcuffs during an investigatory stop and the drawing of a
gun during an arrest or an investigatory stop, the cases hold
that reasonableness must be judged based on the particular
circumstances of the case. See, e.g., Foote v. Dunagan, 33 F.3d
445, 448-49 (4th Cir. 1994) (reasonable to draw gun during
investigatory stop; United States v. Fountain, 2 F.3d 656, 666
(6th Cir.), cert. denied, 114 S. Ct. 608 (1993) (reasonable to
draw gun and use handcuffs during investigatory stop); Tom v.
Voida, 963 F.2d 952, 958 (7th Cir. 1992) (reasonable to kneel and
attempt to handcuff during investigatory stop); Courson v.
McMillian, 939 F.2d 1479, 1493 (11th Cir. 1991) (reasonable to
point shotgun and direct person to lie on ground during
investigatory stop); United States v. Haye, 825 F.2d 32, 35 (4th
Cir. 1987) (reasonable to wrestle to ground and use handcuffs
during investigatory stop); United States v. Nargi, 732 F.2d
1102, 1106 (2d Cir. 1984) ("`[T]here is no hard and fast rule
concerning the display of weapons' in investigative stops.");
United States v. Taylor, 716 F.2d 701 (9th Cir. 1983) (reasonable
to draw gun and use handcuffs during investigatory stop); cf.
Black v. Stephens, 662 F.2d 181, 188-89 (3d Cir. 1981), cert.
denied, 455 U.S. 1008 (1982) (officer's pointing of gun during
traffic altercation violated due process).
In this case, therefore, in order to hold Armstrong
liable for the improper use of handcuffs and guns by the other
officers, it must be shown (a) that Armstrong knew that the other
officers used handcuffs and guns and (b) that Armstrong knew that
the other officers lacked reasonable grounds for their conduct.
I believe that the summary judgment record is
sufficient to establish the first element described above.13
I do not think, however, that the record supports the inference
that Armstrong knew, at any point appreciably before he ordered
the Bakers' release, that the other officers lacked a reasonable
basis for handcuffing the Bakers or holding them at gunpoint.
Moreover, the record does not show that Armstrong recklessly
failed to inquire about the basis for the other officers'
actions. The record does not establish how much time elapsed
between the point when he first saw that the Bakers were
handcuffed and held at gunpoint and the point when he ordered
their release, but it appears that this period must have been
less than 15 minutes, see supra note 3, and the record shows that
Armstrong was busy during this time questioning Clementh Griffin.
Accordingly, I do not see how Armstrong could be held to have had
"actual knowledge" of or to have "acquiesced" in the
constitutional violations that the other officers allegedly
committed.
13
Since we are reviewing a grant of summary judgment, I
agree with the majority that we must accept the Bakers'
statements that handcuffs and guns were employed. In addition,
while I question (for reasons explained above in connection with
the alleged search of Inez Baker's purse) whether it is
reasonable to infer that Armstrong saw what was done to the
Bakers outside the apartment, I think that the record permits the
inference that he saw that the Bakers were handcuffed when they
were brought into the house and that he saw that a gun was
pointed at Inez Baker while she was in the kitchen.
IV.
For these reasons, I believe that the district court
correctly granted summary judgment in favor of Armstrong. I
share the majority's sympathy for the Bakers' plight. It was a
most unfortunate coincidence that they happened to arrive at the
scene of a drug search just as the officers were arriving to
execute the warrant. Their experience must have been terrifying.
It is also most unfortunate that, prior to the expiration of the
statute of limitations, the Bakers did not ascertain the
identities of the officers who allegedly engaged in the conduct
that is claimed to have violated their constitutional rights.
Sympathy for the Bakers, however, does not justify a decision
that ignores the deficiencies in the summary judgment record. I
therefore dissent from the decision of the majority insofar as it
reverses the district court's award of summary judgment.
14
APPENDIX
SUPERIOR COURT OF NEW JERSEY
STATE OF NEW JERSEY
vs SEARCH WARRANT
Cheryl Woods
Defendant
To Detective Robert Armstrong and/or any officer of
Gloucester County Prosecutor's Office, any officer of the New
Jersey State Police or any officer of any Police Department
having jurisdiction:
1. This matter being opened to the Court by Detective
Robert Armstrong of Monroe Township, on application for the
issuance for a search warrant for the (x) premises (x) persons
(x) vehicle described below, and the Court having reviewed the
(x) affidavit of ( ) testimony under oath of the said Detective
Robert Armstrong and being satisfied therefrom that located
therein or thereon are:
evidence of possession and distribution of controlled
dangerous substances, including, but not limited to,
controlled dangerous substances and relating
paraphernalia, records, documents and other items
relating to the possession and distribution of
controlled dangerous substances.
and that probable cause exists for the issuance of such warrant:
2. YOU ARE HEREBY COMMANDED to search the (x) premises
described below (x) person(s) described below (x) vehicle
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Printed text is in regular type. Typewritten text is
underlined. Handwritten text is italicized.
described below and to serve a copy of this warrant on such
person or on the person in charge or control of such premises;
3. YOU ARE HEREBY ORDERED, in the event you seize any
of the above described articles, to give a receipt for the
property so seized to the person whom it was taken or in whose
possession it was found, or in the absence of such person to
leave a copy of this warrant together with such receipt in or
upon the said premises from which the property is taken.
4. The following is a description of the (x) premises,
(x) person, (x) vehicle to be searched:
an apartment located in an apartment building at 607
South Main Street, Williamstown, New Jersey, a three
(3) story wood frame residence located on the corner of
South Main Street and Virginia Avenue, having a parking
lot on the Virginia Avenue side and directly across the
street from the Williamstown Fire Company.
5. Special instructions (Time Limitations, etc.):
Anytime day or night - no knock
Given and issued under my hand at 10 o'clock p m.,
this First day of June , 1991.