On Appeal from the United States District Court for the District of Delaware (D.C. No. 03-cv-369) District Court Judge: Honorable Kent A. Jordan.
The opinion of the court was delivered by: Fuentes, Circuit Judge.
Argued September 29, 2005
Before: RENDELL, FUENTES, and WEIS, Circuit Judges.
In the hopes of catching a fugitive wanted for drug and weapons offenses, federal and local law enforcement officers set up undercover surveillance outside a home in Newark, Delaware. During the surveillance, plaintiff-appellant Pamela Couden, who lived near the target house, pulled up in front of her home with five of her children in her car. Couden's 14 year-old son got out of the car to leave his skateboard in the garage and to summon his sister from the house. Before realizing they had the wrong person, the officers approached the Couden car with guns drawn, then entered the Couden home where they tackled and handcuffed Couden's son.*fn1 The Coudens filed suit against the officers and various government entities, claiming constitutional and state common law violations. Concluding that the officers' conduct was reasonable, the District Court granted summary judgment in favor of all defendants. We conclude that the District Court erred in failing to consider the facts in the light most favorable to plaintiffs. We reverse in part, affirm in part, and remand for further proceedings.
The relevant facts are as follows. On April 12, 2001, members of the Delaware Joint Violent Crime Fugitive Task Force set up surveillance near 7 Sanford Drive in Newark, Delaware, based on a tip that a fugitive wanted by the New Castle County Police Department for drug and weapons-related charges might be staying at that address. The Task Force was made up of both state and federal officers, and the members at the scene were defendant-appellees Scott Duffy of the Federal Bureau of Investigation (FBI), James Armstrong and Jay Freebery of the New Castle County Police Department, and Liam Sullivan of the Wilmington Police Department. The members of the Task Force were parked in two unmarked vehicles and wore plain clothes.
At about 8:30 p.m., Pamela Couden drove up to her home at 3 Sanford Drive, two houses away from 7 Sanford Drive, with five of her children -- plaintiff-appellants Micah, age 5, Luke, 7, Jordan, 9, Nicholas, 11, and Adam, 14. Couden's daughter, 17 year-old Tiffany, was inside the residence. Couden parked on the street and kept her lights on and the engine running while Adam exited the car. According to Couden, she was waiting for Adam to put his skateboard in the garage and summon his sister, and the family then planned to go out to dinner. Adam walked into the garage, where he put down his skateboard and looked through a window from the garage into the house. He saw Tiffany through the window and started to leave the garage. At that time, he saw a man charging towards him with a gun. Frightened, he slammed the garage door shut, remaining inside.
Meanwhile, Pamela Couden pulled her car into the driveway, put her high beams on, and blew the horn to summon Adam. She then saw an unknown man -- later determined to be Officer Armstrong -- walking towards her with a gun. When he reached the car he pointed the gun at Pamela Couden and pulled the door handle without displaying a badge or identifying himself in any way. Not realizing that the man was an officer, Couden tried to escape. She pressed the gas pedal, swerved to avoid the garage, and swerved again to avoid a tree. She then saw a second man -- later determined to be Officer Freebery -- running towards the car pointing a gun at her and holding a flashlight above his head. As Couden drove past Officer Freebery, he threw the flashlight at a window of the car, shattering the glass. The children screamed from the back seat of the car, and Couden believed that one of them had been shot. Couden continued driving to a neighbor's house and drove over the curb, breaking the car's steering column. She ran into the neighbor's house and called 9-1-1.
From where he was standing inside the garage, Adam Couden heard his mother and brothers screaming "he's got a gun!" and then saw the family car drive across the yard with tires screeching. He then heard the sound of glass shattering.
Tiffany testified that, from inside the house, she saw a man with a gun approach the sliding-glass rear door to the house. The man tried to open the door, and when he saw Tiffany, he showed her what she thought was a badge and demanded entry. Tiffany testified that the man entered the house, but she did not specify whether she let him in or whether he forced his way in.
A second man followed the first man into the house, and told Tiffany that there was a robber in the house. One of the men proceeded down the hallway, yelling "Come out with your hands up!" A third man then entered and headed toward the garage, and Tiffany heard someone yell "we got him" from the area of the garage and kitchen. Two of the men brought Adam into the house from the garage and threw him on the floor, where four men participated in pushing his head down, pointing guns at him, and spraying him with mace. They then handcuffed him.*fn2
Tiffany told the men that Adam was her brother, and they demanded a driver's license from Adam. Adam said that he was too young to have a driver's license. The men then left the house. About twenty minutes later, they returned and removed Adam's handcuffs.
Later that evening, Officers Armstrong and Freebery spoke to Pamela Couden and explained that a surveillance team was working undercover in the neighborhood, and that they had mistakenly assumed that Adam was the fugitive whom they were seeking. Officer Armstrong also admitted to Couden that he had seen the children in the back seat when he approached her vehicle.
Couden and the six children filed suit against the officers, the City of Wilmington, the Wilmington Police Department, New Castle County, and the New Castle County Police Department in the United States District Court for the District of Delaware in April 2003. They claimed violations of their rights under the Fourth and Fifth Amendments to the United States Constitution, and they proffered state common law claims of intentional and negligent infliction of emotional distress, assault and battery, false imprisonment, trespass, and wanton negligence. The complaint was originally filed against Agent Duffy and "unknown named agents of the FBI," but after defense counsel provided plaintiffs with the names of the local officers involved in the relevant events, plaintiffs filed an amended complaint naming as defendants James Armstrong, Jay Freebery, Liam Sullivan, the New Castle County Police Department, New Castle County, the City of Wilmington, and the City of Wilmington Police Department. After exhausting their administrative remedies under the Federal Tort Claims Act (FTCA) in November 2003, plaintiffs added the United States as a defendant.
Agent Duffy, Officer Armstrong, Officer Freebery, New Castle County, and the New Castle County Police Department filed motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative for summary judgment. The United States also filed a motion to dismiss. Officer Sullivan, the City of Wilmington, and the Wilmington Police Department did not make any dispositive motions. Plaintiffs filed a motion under Rule 56(f), requesting an opportunity to take further discovery. The District Court considered all dispositive motions filed by defendants as motions for summary judgment, and granted judgment to all defendants, including, sua sponte, to Sullivan, the City of Wilmington and the Wilmington Police Department. Couden v. Duffy, 305 F. Supp. 2d 379, 385, 392-93 (D. Del. 2004). The Court also denied plaintiffs' 56(f) motion. Id. at 393. This appeal followed.*fn3
I. Constitutional Claims Against the Individual Defendants
Under 42 U.S.C. §1983, an individual may bring a suit for damages against any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the United States Constitution or federal law. Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005). A parallel right of action against federal officials exists under the Supreme Court's holding in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001). Here, plaintiffs have brought suit against Officers Armstrong, Freebery, and Sullivan under § 1983, and against Agent Duffy under Bivens, claiming that their rights were violated under the Fourth and Fifth Amendments to the United States Constitution. The District Court did not consider the Fifth Amendment claim, however, and plaintiffs do not argue it in their briefs before this Court. We therefore hold that any Fifth Amendment claim is waived. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) ("It is well settled that an appellant's failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal."). Under the Fourth Amendment, plaintiffs claim that the four officers (1) unlawfully searched the Couden residence, (2) unlawfully seized six of the seven plaintiffs (Pamela Couden and four children in the car, and Adam Couden in the Couden residence), and (3) used excessive force against Adam Couden.*fn4
Under certain circumstances, government officials are protected from Bivens and § 1983 suits by qualified immunity. In the context of Fourth Amendment claims, qualified immunity operates to "protect officers from the sometimes 'hazy border between excessive and acceptable force,' and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful." Saucier v. Katz, 533 U.S. 194, 206 (2001) (quoting Priester v. Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000) (internal citation omitted)). In considering whether qualified immunity applies, a court must first decide whether the facts, taken in the light most favorable to the plaintiff, demonstrate a constitutional violation. Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002) (citing Saucier, 533 U.S. at 201). If so, the court next determines whether the constitutional right in question was clearly established. Id. at 277 (citing Saucier, 533 U.S. at 201). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. "If the officer's mistake as to what the law requires is reasonable," the officer is entitled to qualified immunity. Id. at 205.
A. Analysis by the District Court
The District Court found that the individual defendants did not violate plaintiffs' constitutional rights, and it therefore did not reach the question of whether the rights were clearly established. See Couden, 305 F. Supp. 2d at 387-90. We conclude that in its constitutional rights analysis, the District Court failed to consider the facts in the light most favorable to the plaintiffs. Initially, the District Court reported defendants' version of Adam Couden's behavior:
Defendants claim that . . . a white male, later identified as Adam Couden . . . , got out of the vehicle, proceeded to the rear of Plaintiff's residence, and looked into several windows in the rear of the house. Defendants state that Adam continued to peer into the windows while hiding behind objects in the back yard, and then attempted to open the rear sliding glass door, but could not gain entry. According to Defendants, Adam looked around to the left and right as if he was making sure no one could see him, and then quickly entered another rear door.
Id. at 382 (citations to the record omitted). The District Court did not present plaintiffs' contradictory version of these details, and went on to explicitly adopt defendants' recital of the facts in considering whether a constitutional violation had occurred. The District Court stated, for example, that "there is no dispute that Adam . . . looked in the rear windows before entering the house," and that based on this fact, among others, Officers Armstrong and Freebery acted reasonably in approaching the house to investigate. Id. at 388. In its discussion of plaintiffs' seizure claim, the District Court similarly noted that it is undisputed that Officers Armstrong and Freebery witnessed Adam approach the house from the rear, and peek into the rear windows of the house. It is also undisputed that Adam could not gain entry after opening the rear sliding glass door, and that he entered another rear door after looking around to the left and right as if he was making sure no one could see him.
Id. at 389. The Court concluded that this "suspicious behavior," coupled with the officers' belief that Adam was the fugitive whom they were seeking, "was sufficient to give the Officers reasonable suspicion of criminal activity," and thus to justify the seizure of Pamela Couden and the children in the car under the Fourth Amendment. Id.
All of these facts as recited by the District Court are disputed by plaintiffs. In his affidavit, Adam Couden stated that he simply walked into the garage, put his skateboard on a bench, and looked through a window from the garage into the house. He then began to exit the garage, and saw a man "charging" towards him with a gun. Adam does not admit to looking through multiple windows, attempting to gain entry through a rear glass door of the house, or "looking around to the left and right as if he was making sure no one could see him."
In addition, the District Court failed to take into account several of plaintiffs' allegations favorable to their claim. Pamela Couden stated that when she pulled into her driveway, she put her car's high beams on and blew the horn. Plaintiffs reasonably argue that such behavior is uncharacteristic of a getaway car, but the District Court did not mention this element of plaintiffs' account. The Court also failed to note Couden's allegation that after the misunderstanding was discovered, Officer Armstrong admitted to her that he had seen the four children sitting in the car when he initially approached. While this point is hardly definitive, it supports plaintiffs' argument that Officer Armstrong acted unreasonably when he approached the vehicle with his weapon raised.
In sum, it is clear that the District Court did not consider the facts in the light most favorable to the plaintiffs as required when analyzing a summary judgment record, and that this error significantly influenced the Court's findings. We next consider whether summary judgment is appropriate under a proper view of the record, examining in turn the seizure of Pamela Couden and the children in the car, the entry into the Couden residence, and the seizure of Adam Couden.
B. Seizure of Pamela Couden and the Children in the Car
Considering the facts in the light most favorable to the plaintiffs, Armstrong's conduct gave rise to an unconstitutional seizure under the Fourth Amendment when he approached the Couden vehicle with gun drawn. The federal defendants suggest that the plaintiffs in the car were never "seized" for purposes of the Fourth Amendment because Pamela Couden drove away when Officer Armstrong approached the car. Generally, "whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Terry v. Ohio, 392 U.S. 1, 16 (1968). Here, Officer Armstrong clearly restrained the freedom of Couden and her children when he approached them, pointed a gun at Couden, and tried to open one of the doors to the car. However, "if the police make a show of authority and the suspect does not submit, there is no seizure." United States v. Valentine, 232 F.3d 350, 358 (3d. Cir. 2000); see also id. at 353, 359 (holding that no seizure occurred where an officer told Valentine to approach and to put his hands on the squad car, and Valentine responded "Who, me?" before attempting to run away). That reasoning does not apply here, however, because Couden alleges that Officer Armstrong never declared himself to be a police officer and never displayed a badge. There was thus no "show of authority" by Officer Armstrong, and Couden could not have been expected to "submit." Under these circumstances, it would be unreasonable to find that Couden's flight negated the seizure. We hold that a seizure did occur for purposes of the Fourth Amendment.
Generally, a seizure is reasonable only where it is justified by a warrant or probable cause. Shuman, 422 F.3d at 147. An officer without a warrant or probable cause may, however, conduct a "Terry stop" -- a "brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry, 392 U.S. at 30). Under the reasonable suspicion standard, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Terry, 392 U.S. at 21.*fn5
Defendants argue that Officer Armstrong had a reasonable suspicion of criminal activity based on Adam Couden's strange behavior, and that Officer Armstrong reasonably believed that the vehicle parked near the house was a getaway car. In determining whether the reasonable suspicion standard is satisfied, a court must "consider the totality of the circumstances, including the police officer's knowledge, experience, and common sense judgments about human behavior." United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002). Since the Couden residence was not the house under surveillance, the officers had no reason to believe that Adam Couden was the fugitive they were seeking. Nor was it reasonable, under the plaintiffs' description of the facts, for the officers to assume that Adam was a burglar.*fn6 Adam stated that he was carrying a skateboard and walked directly into the garage, where he put down the skateboard and looked through a window into the house. The car contained four small children, ranging in age from five to eleven years old, who should have been visible to Officer Armstrong at least by the time he reached the car and began pulling on the door handle. Pamela Couden states that when she pulled her car into the driveway, she turned on her car's high beams and honked. None of these facts is suggestive of unlawful conduct. While it is true that a "reasonable suspicion of criminal activity may be formed by observing exclusively legal activity," United States v. Ubiles, 224 F.3d 213, 217 (3d Cir. 2000), the officers here must point to some specific articulable basis for their suspicion. They have not done so, and no set of reasonable inferences from the behavior witnessed by the officers provides such a basis. See Johnson v. Campbell, 332 F.3d 199, 208 (3d Cir. 2003) ("There are limits . . . to how far police training and experience can go towards finding latent criminality in innocent acts.").*fn7
Under the facts as presented by plaintiffs, Officer Armstrong's seizure of the plaintiffs in the car was therefore unconstitutional.*fn8
Moreover, the right violated was "clearly established" under the test articulated by the Supreme Court in Saucier. In deciding whether a right is clearly established, the inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201. A grant of qualified immunity may be upheld where a challenged police action presents an unusual legal question or "where there is 'at least some significant authority' that lends support" to the conduct in question, even if the conduct was unconstitutional. Doe v. Groody, 361 F.3d 232, 243 (3d Cir. 2004) (citation omitted). "On the other hand, the plaintiff need not show that there is a prior decision that is factually identical to the case at hand in order to establish that a right was clearly established."
We hold that it would have been clear to a reasonable officer that the conduct observed by Officers Armstrong and Freebery -- a young man exiting a car parked near a house, walking from the car into the garage of the house while carrying a skateboard and then looking into a window of the house, and the car then driving into the driveway of the house, turning on its brights, and honking -- do not provide the reasonable suspicion of illicit activity necessary for a Terry stop. There is simply nothing suspicious in this series of actions, and plaintiffs have not pointed to any legal authority that might cloud the issue. Cf. Johnson, 332 F.3d at 209 (finding no reasonable suspicion to support a Terry stop where the subject was "drinking coffee, flipping through a newspaper, pacing, and rubbing his head"). Although reasonable suspicion cases are inherently fact-based, we find that based on relevant precedent, the lack of a specific ...