Dissenting.
The role of the police is not a simple one. Officers are charged with the duty of protecting the community from criminal elements and with responding to calls for help by the citizenry in widely varying circumstances, all the while carrying out confrontational occurrences with due regard for the constitutional rights of the citizenry. Because the line between what proper enforcement requires and what will constitute a violation of established rights is often indistinct, the law recognizes qualified immunity for police officers and other officials to encourage effective enforcement by easing the likelihood of personal liability in carrying out official duties.
Qualified immunity is an important legal concept designed to “avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). If officers are not on notice that their conduct in particular situations is clearly unlawful, summary judgment based on qualified immunity is appropriate. This immunity is broad in scope and protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).
A narrow, cramped approach to qualified immunity does not serve the community nor is it in accord with Supreme Court jurisprudence. As the Court of Appeals for the Fourth Circuit has recognized,
“If every mistaken seizure were to subject police officers to personal liability under § 1983, those same officers would come to realize that the safe and cautious course was always to take no action. The purposes of immunity are not served by a police force intent on escaping liability to the cumulative detriment of those duties which communities depend upon such officers to perform.”
Gooden v. Howard County, 954 F.2d 960, 967 (4th Cir.1992) (en banc).
The Supreme Court has prescribed a two-step process in evaluating a claim for qualified immunity. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. First, plaintiffs must establish that defendants violated a constitutional or statutory right. Id. If the court determines that defendants violated a constitutional or statutory right, the next step *502is to determine whether the right in question was clearly established. Id. Often this second inquiry is founded on whether a novel issue or a well-established interpretation of the law is in controversy. If there is doubt about the state of the law, the officer is granted immunity.
There is another class of qualified immunity cases, however, where the issue is not whether there was a misunderstanding about the law, but rather whether the officer made a reasonable mistake of fact in carrying out his duties. See Butz v. Economou, 438 U.S. 478, 507, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (holding that officers “will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law”).
The difference between a mistake of fact and a mistake of law is illustrated by the not unusual situation involving an unlawful search of a home. In some instances, there may be a legal question as to the scope of the search authorized by the warrant. But in other instances there may be a mistake of fact, such as an error with respect to the particular house to be searched. Qualified immunity may be applicable in both cases. See e.g., Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) (wrong apartment searched); Dean v. City of Worcester, 924 F.2d 364 (1st Cir.1991) (wrong person arrested because of mistaken identity).
The case before us includes mistakes of fact on the part of everyone involved. The police believed that they were confronted by criminals in the commission of burglary or by a fugitive at large. The plaintiffs were under the erroneous impression that they were threatened by armed robbers.
At first blush, as plaintiffs would have us believe, it would be unlikely that police officers would reasonably think that a 14-year-old boy carrying a skate board to his home was a burglar. But, there are critical and undisputed facts that the plaintiffs fail to discuss that the District Court took into consideration. Although we consider the evidence in the light favorable to the plaintiffs, we must review all of the undisputed facts, not just those that the plaintiff chooses to emphasize.
The Supreme Court has explained,
“... the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.... [T]he judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is genuine issue for trial.... If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.... In essence though, the inquiry is ... ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 249-50, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original) (internal citations omitted).
This is a somewhat different standard than that used in Federal Rule of Civil Procedure 12(b)(6) motions where even the sometimes fanciful allegations in a plaintiffs complaint are accepted as true.
The proper, comprehensive view of all of the evidence here develops the following picture. The plaintiffs’ home was on the corner of Sanford Drive and Argyle Road. Pamela Couden stopped her car on Argyle Road and her son Adam got out. He crossed Argyle toward the rear of his home. . From there, he was able to gain entrance to the rear of the garage which *503apparently was on the far side of the house rather than alongside Argyle Avenue.13 The plaintiffs admit it was dark at the time, a critical factor in evaluating what happened.
Pamela waited in the car for some unspecified time until she decided that Adam was taking too much time. She then drove the car around the corner to her left on to Sanford Drive and pulled into her driveway in front of the garage. She could not see Adam so she put on the high beams of her headlights and blew the horn. Still getting no response, she blew the horn again.
At that point, she noticed officer Armstrong (in plain clothes) walking slowly on Argyle Street toward her. According to Pamela, he approached the ear with a gun, pointed it toward her head and tried to open the door. She alleges that Armstrong did not identify himself although that is contradicted by Officer Freebery. Pamela panicked and drove her car to the left toward Officer Freebery, who had been following behind Armstrong. Faced with a car coming toward him with the headlights on high beams, Freebery threw his flashlight at the auto and broke the passenger side window.
Adam who had entered the garage by this time, heard the car wheels screeching, the noise of the broken glass and his mother screaming, “He’s got a gun!” As Adam started to leave the garage, he saw a man with a gun charging toward him. Adam slammed the door shut and held it tight for a while. He then ran to a door that led into the house where he was seized by a group of men, wrestled to the floor, sprayed with pepper spray or mace and handcuffed.
Plaintiffs have conceded that “[djefen-dants Armstrong and Freeberry [sic ] believed Adam[’]s mom was conspiring with the fugitive (Adam), for the purpose of helping him get away. For this reason and because of the totality of the circumstances which led the [defendants to believe the fugitive was dangerous or violent, they thought that they needed to get out of their car, and go onto the Couden’s property to investigate.”14
Even reviewing the disputed facts in favor of the plaintiffs, it is clear that this case was one of mistaken identity and an erroneous appraisal of the circumstances by the police officers. That reasonable mistake of fact neither establishes a constitutional violation nor does it deprive the officers of qualified immunity. The majority opinion concedes that the officers did not act maliciously or wilfully, though they may have been overzealous.
Pamela Couden
Although the majority concludes that Officer Armstrong violated Pamela Couden’s Fourth Amendment rights by seizing her, it is undisputed that Pamela fled from the police officers. She was not detained in any sense and she has not established a Fourth Amendment violation.
California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), discussed whether “with respect to a show of authority as with respect tq application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not ... neither usage nor common-law tradition makes an attempted seizure a seizure.” Id. at 626, 626 n. 2, 111 S.Ct. 1547 (emphasis in original).
*504In that case, the Court held that a “seizure” in the constitutional sense did not occur until a pursuing police officer tackled a fleeing suspect. The Court concluded that even if the officer’s pursuit and calling for the suspect to halt acted as a show of authority, a seizure did not occur until the physical contact occurred.
County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), reaffirmed Hodari. In Lewis, the Court held that no Fourth Amendment seizure occurred when a pursuing police car sought to stop a suspect by using flashing lights, but accidentally stopped him by crashing into him.
No seizure occurs until a suspect has submitted to the show of authority that makes her feel she is not free to leave or where the officer applies physical force to her. “If [an individual] manifests his belief that he has not been seized by attempting to flee, he has not submitted to a show of authority and, therefore, has not been seized.” U.S. v. Smith, 423 F.3d 25, 31 (1st Cir.2005) (citing Hodari D., 499 U.S. at 626-29, 111 S.Ct. 1547).
At best, the officers here may have attempted to seize Pamela, but as the Supreme Court has recognized, “[attempted seizures of a person are beyond the scope of the Fourth Amendment.” Lewis, 523 U.S. at 845 n. 7, 118 S.Ct. 1708.
Even if the officers’ conduct could have been construed as a seizure, police have authority under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to accost an individual and restrain his freedom to walk away. A so-called “Terry stop” requires the officer to have a reasonable suspicion “that criminal activity is afoot.” Here, there was information that a fugitive was in the area and the police were on alert. Pamela’s conduct in first parking her car on Argyle Street to allow Adam to exit, then later moving over to Sanford Drive was enough to lead the officers to suspect something unusual was in progress, at least enough to justify inquiry.
The officers reasonably could have interpreted Pamela’s flashing of her high beams and honking of her horn as a warning to the individual who had entered the garage. Considering all the circumstances, Officer Armstrong did not act unreasonably in approaching Pamela’s car for questioning. Unfortunately, the inquiry which could have averted the situation was frustrated by Pamela’s fleeing in a panic, a circumstance which reasonably supported the officer’s suspicions that indeed something was amiss.
The test to determine whether the officers are entitled to qualified immunity is whether they acted reasonably under the circumstances that then existed. All the events leading up to the incident are relevant. Abraham v. Raso, 183 F.3d 279, 291 (3d Cir.1999).
The fact that Officer Armstrong displayed a pistol was not unreasonable in light of the information about a fugitive suspected of weapons violations being in the area. The display of a gun did not act to make the incident a seizure nor was it otherwise unconstitutional.
In Mellott v. Heemer, 161 F.3d 117 (3d Cir.1998), five deputy United States Marshals entered the home of plaintiffs to effect an eviction. Allegedly, the marshals pointed loaded guns at plaintiffs. In addition, one of the plaintiffs asserted that she was pushed into a chair on two occasions and a second plaintiff claimed that he was led at gunpoint into a potentially dangerous situation. Weighing the factors outlined in Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), we held that the conduct did not violate the Fourth Amendment. Although *505the crime was not severe and the plaintiffs were not actively resisting, there was reason to believe that they posed a threat to the officers because there was evidence that firearms were in the house. Id. at 122-23.
In Sharrar v. Felsing, 128 F.3d 810 (3d Cir.1997), we held that it was not a constitutional violation to use twenty officers, including a SWAT team armed with machine guns and an FBI hostage negotiator to carry out a domestic violence arrest. 128 F.3d at 821. We noted that the methods used by the police in that case “appear[] extreme,” but that “[i]t does not follow ... that the extreme methods used in effecting the arrests, such as requiring plaintiffs to lie face down in the dirt, with guns to their heads and vulgar threats, were constitutionally excessive.” Id.
Officer Freebery did not act unreasonably in attempting to stop the car by throwing a flashlight at it. He was confronted by an automobile coming at him in a life-threatening fashion. In rapidly occurring events like this, officers must be given the benefit of the doubt as to the proper reaction to the situation. See Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir.2004) (noting that “ ‘[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others, it is not constitutionally unreasonable to prevent escape by using [even] deadly force’ ” (quoting Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985))).
In Brosseau v. Haugen, 543 U.S. 194, 201, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004), the Court concluded that in some circumstances it may be reasonable to use deadly force to stop an otherwise unarmed suspect fleeing in a car. The Court held that there was no clearly established violation of the Fourth Amendment where the officer reasonably believed the moving vehicle posed a threat of danger to police or others. Officer Freebery showed commendable restraint in tossing the flashlight rather than firing his pistol at the car. The threat of injury to the officers and possibly others, as well as the fact that the car was fleeing what then appeared to be a crime in progress certainly justified Officer Freebery’s conduct.
There is no evidence that Officer Sullivan and Agent Duffy participated in any way with the confrontation with Pamela Couden and she has not established any constitutional violation as to them.
Adam Couden
I agree with my colleagues that once Pamela sped away in her car the officers were reasonably concerned that a crime was underway and were justified in their decision to investigate the house further. When one of the officers approached, Adam slammed the back door of the garage and held it tight for a while, preventing the police from entering. Thus, the officers could reasonably believe that, in view of all the circumstances, Adam was resisting apprehension.
The police did not know that Adam was unarmed or that he was 14 years old. Plaintiffs have not disputed the officers’ assertion that Adam was about six feet tall and weighed about 200 lbs. The officers’ request after Adam was subdued to produce a driver’s license confirmed that he appeared to be older than his years.
In short, there is no reason for the police to assume that they were not confronting an armed burglar or the fugitive they were seeking. Adam’s allegation that four officers seized him and pushed him to the floor does not establish an unconstitutional use of excessive force. Nor does the assertion that in addition to being held on *506the floor, Adam was sprayed with mace or pepper spray establish an unconstitutional use of excessive force. See, e.g., Gallegos v. City of Los Angeles, 308 F.3d 987, 991 (9th Cir.2002) (use of drawn guns on a man believed to be a suspect was reasonable); Dean v. City of Worcester, 924 F.2d 364, 368 (1st Cir.1991) (reasonable for police to push man believed to be a suspect to the ground, push a knee in his back, place a gun to his head and threaten to “blow his head off,” and then leave him handcuffed for thirty minutes while they determined his identity).
It is an important factor that Adam was not injured by the efforts used to subdue him. See Saucier, 533 U.S. 194, 209, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (noting that the “conclusion [that the officers did not use excessive force] is confirmed by the uncontested fact that the force used— dragging [the defendant] from the area and shoving him while placing him into a van — was not so excessive that [the defendant] suffered hurt or injury”); Mellott, 161 F.3d at 122 (noting that it is “important to consider ... whether ‘the physical force applied was of such an extent as to lead to injury.’ ” (quoting Sharrar, 128 F.3d at 822)).
In reviewing excessive force claims, a court should consider the following factors among others:
“the possibility that the persons subject to the police action are themselves violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time.”
Sharrar, 128 F.3d at 822. Further, the reasonableness of the use of force is evaluated in light of “ ‘the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight’ ” Carswell, 381 F.3d at 240 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865).
In 20/20 hindsight one may conjecture that two officers might have been adequate to subdue Adam. However, they did not have the leisure nor the information to make such a choice. Indeed, in the circumstances it would appear that the use of superior force was a desirable measure to forestall attempts or inclinations by the perceived burglar to resort to a deadly weapon, especially when Tiffany Couden, an innocent bystander, was standing nearby.
The fugitive the officers sought was wanted on weapons charges among others. Plaintiffs have alleged that the police believed that Adam was the fugitive, and they could assume that he might be armed.
In Carswell, we concluded that a police officer was entitled to qualified immunity even though, through an error in judgment, he had shot and killed a fleeing individual. The case before us also involved a mistaken, but reasonable, belief by police officers; fortunately it did not result in injury to Adam.
The twenty minutes that he stayed in handcuffs is simply not enough time to vitiate qualified immunity. See Torres v. United States, 200 F.3d 179, 186 (3d Cir.1999) (reasonable use of force to leave an unarmed suspect wearing only a towel handcuffed for one and a half to three hours); Dean, 924 F.2d at 368 (reasonable to leave man handcuffed for one-half hour while officers determined whether he was the fugitive they sought).
In hindsight, twenty minutes might have been longer than necessary here, but *507again, that misjudgment is not sufficient to expose the police to personal liability.
The cases the majority cites are distinguishable. In Baker v. Monroe Township, 50 F.3d 1186 (3d Cir.1995), the Court found that officers had used excessive force where they handcuffed several members of a family and continued to point guns at them where there was “simply no evidence of anything that should have caused the officers to use the kind of force they are alleged to have used.” Id. at 1193. In reaching this conclusion, the Court noted that “the appearances were those of a family paying a social visit.” Id. Moreover, Baker was pre-Saucier and did not analyze the official immunity issue independently of the asserted constitutional violation.
In Robinson v. Solano County, 278 F.3d 1007 (9th Cir.2002) (en banc), another case cited by the majority, a man went to meet authorities when they arrived at his house in response to a call that he had shot his neighbor’s two dogs with a shotgun. He calmly identified himself as the man involved with the dogs. One of the officers pointed a gun at his head from only three feet away. The Court found that this conduct violated the Fourth Amendment, but nevertheless granted official immunity. Id. at 1015-16.
Until he was identified, Adam Couden, on the other hand, could have posed a danger, and the police justifiably used the force they did to protect Tiffany as well as themselves from any potential harm.
Sua Sponte Grant of Summary Judgment
I also believe that the District Court correctly granted summary judgment sua sponte with respect to Officer Sullivan and the City of Wilmington. District courts are entitled to grant summary judgment sua sponte in appropriate circumstances. See Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“[District courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.”); see also Chambers. Dev. Co. v. Passaic County Utils. Auth., 62 F.3d 582, 584 n. 5 (3d Cir.1995); Otis Elevator Co. v. George Washington Hotel Corp., 27 F.3d 903, 909-10 (3d Cir.1994).
In Gibson v. Mayor and Council of the City of Wilmington, 355 F.3d 215 (3d Cir.2004), we affirmed a sua sponte grant of summary judgment despite lack of notice. Although we explained that sua sponte grants of summary judgment without notice are not preferable, we also noted that the requirement of notice could be waived in the presence of a fully developed record, lack of prejudice or a judgment based on a purely legal issue. Id. at 224. In Gibson we found a lack to prejudice to the complaining party.
Three of the four officers in the present case filed motions to dismiss the case or, in the alternative, for summary judgment. Plaintiffs were on notice to present all of their evidence. The grounds for granting summary judgment in favor of the moving defendants also applied to the claims against the non-moving defendant, Officer Sullivan.
It is significant that the plaintiffs have not shown how Sullivan’s actions were such as to differentiate his liability from that of the other officers. Indeed, he did not participate in the encounter with Pamela Couden and only tangentially took part in subduing Adam.
In their briefs in this Court, the Coud-ens have failed to cite any facts that would demonstrate prejudice to their claims against officers Sullivan and the City of *508Wilmington. I would affirm the judgment in Officer Sullivan’s favor as well, rather than remand to create unnecessary paper shuffling with an inevitable result.
The community not only has the right to have its police officers act with restraint, but also to respond responsibly to criminal activity without undue concern over potential lawsuits against them. The law should not, and does not, impose restrictions on proper use of force, the absence of which would endanger an officer’s or bystander’s life.
I believe that the officers in this case made a mistake in judgment that did not violate the plaintiffs’ constitutional rights, but even if they violated the plaintiffs’ rights, qualified immunity applies because of reasonable mistakes of fact.
I would affirm the judgment of the District Court as to all parties.
. The parties failed to provide us with photos or sketches of the scene which would have been most helpful.
. Plaintiffs' Consolidated Response to the Defendants' Motion to Dismiss or for Summary Judgment in the District Court at 5.