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# M el lott v . H ee me r

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 97-7437

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" M e l lott v . H e e me r " (1998). 1998 D e cisio n s

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. e du/thir dc ir c uit_1998/257Filed November 5, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-7437

WILKIE MELLOTT; BONNIE L. MELLOTT; KIRK MELLOTT; MICHELLE HOLLINSHEAD; JACKIE WRIGHT

v.

DON HEEMER; DAVID SEICH; PAUL HARDY; MICHAEL
REGAN; UNITED STATES OF AMERICA, Appellants

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 94-02071)

Argued: April 27, 1998

Before: ALITO, RENDELL, and GARTH, Circuit Judges

(Opinion Filed: November 5, 1998)

DAVID M. BARASCH United States Attorney

MARY C. FRYE (Argued) Assistant U.S. Attorney Office of the United States Attorney

228 Walnut Street

P.O. Box 11754 Harrisburg, PA 17108

Counsel for AppellantsDONALD A. BAILEY (Argued)

Suite 209 3540 North Progress Avenue Harrisburg, PA 17110

Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

This case involves allegations that several Deputy United States Marshals used excessive force during a court ordered eviction. On appeal, the marshals contend t hat the district court erred by refusing to grant summary j udgment in their favor on grounds of qualified immunity. Be cause we conclude that the marshals are entitled to summary judgment on all the plaintiffs' claims, we reverse.

I

Bonnie and Wilkie Mellott ("the Mellotts") are form er owners of land in Pennsylvania on which they reside d and operated a dairy farm. The Mellotts' son, Kirk, als o resided on the property in a separate house located about a mile away from his parents' home. In the early 1980s, th e Mellotts borrowed money to purchase additional land and to make improvements on their farm. After falling f ar behind in their debt payments, the Mellotts filed a voluntary petition for bankruptcy in 1989. The Mell otts' property was sold at a public auction in November 1 992, and the bankruptcy court issued an order directing the Mellotts to vacate the premises by December 10, 199 2.

The Mellotts failed to leave their former property by that date, and the bankruptcy court issued an order of contempt on December 21, 1992. The court directed t he Mellotts, under penalty of incarceration and/or fin e, to vacate the premises by December 28, 1992. The Mello tts still refused to leave and instead responded byfili ng a motion to vacate the judgment, a notice of appeal, a motion to disqualify the bankruptcy judge, and a notice of motion

2to stay. On December 31, 1992, the bankruptcy court

denied the Mellotts' motions and signed a writ of a ssistance directing the United States Marshal Service to serv e the Mellotts with a notice stating that all persons and personal property had to be removed from the premises by Jan uary 5, 1993. The deputy marshals testified that they po sted the notices at the Mellotts' residence on December 31, 1992,
and Kirk Mellott testified that he found a notice o n his door that same day. Kirk further testified that he discu ssed the notice with his parents and understood that the not ice ordered him to vacate the premises.

After the Mellotts again failed to leave by the ord ered date, the bankruptcy court issued a writ of assista nce, dated January 11, 1993, directing the United States
Marshal Service to secure the auctioned land and re move all persons from the premises. Upon receipt of the writ, Supervisory Deputy United States Marshal Robert Bye rts assigned Deputy Marshal Don Heemer to head a team o f five deputy marshals ("the marshals") that would re move the Mellotts from the property. Byerts testified th at he provided the marshals with the following informatio n prior
to the eviction:

a. The Bankruptcy Court had requested additi onal security for hearings at which the Mellotts were expected to appear; b. A Farmers Home Administration [FHA] Count y Supervisor had reported that Wilkie Mellott had chased him off the Mellott property at the f ront of a pick-up truck; that Wilkie Mellott had dis played a handgun after chasing the County Superviso r off the property in a pick-up truck; that Wilkie Mellott had threatened to shoot any federal agent th at came on his property; and that the County Supervisor had felt his life had been threat ened by
Wilkie Mellott. c. The Mellotts were reported to own numerou s firearms. d. Kirk Mellott had recently sustained a ser ious head injury and was considered unstable. e. Kirk Mellott had informed Deputy Marshals Regan and Knicely that the Mellotts were not going to
leave the farms.

3App. 59-60. See also App. 100-110, 114, 117, 162-63

(deposition of Donald Heemer); App. 182-85 (deposit ion of David Seich).1 Byerts further testified that the ma rshals wore bullet-proof vests and "were authorized to use a short shotgun and an AR-15 semi-automatic rifle in the re moval operation because of concerns that they might meet armed resistance at the Mellott residences." App. 59.

On the morning of January 21, 1993, the marshals me t with at least two uniformed state troopers and drov e to the Mellotts' residence. Viewing the evidence in the li ght most favorable to the plaintiffs, the eviction proceeded as follows.2

When the officers arrived at the Mellotts' residenc e, they approached the house, and Deputy Marshal Heemer
knocked on the front door. After Bonnie Mellott ans wered the door, Heemer entered the house, pointed his gun "right in her face," pushed her into a chair, and kept his gun aimed at her for the remainder of the eviction. App . 264-65, 424, 441. Deputy Marshall David Seich entered the h ouse next, "pumped a round into the barrel" of his sawed -off shotgun, pointed it at Wilkie Mellott, and told him "to sit still, not move and to keep his mouth shut." App. a t 265. See also App. at 440-41. With respect to this encou nter,

___________________________________________________ ______________

1. Like the district court, we consider the existen ce of the Byerts' briefing to be undisputed. See Dist. Ct. Op. at 8. Although the plaintiffs disagree, see Appellees' Br. at 25-29, they have presented no evidence to contradict the marshals' testimony that the briefin g took place. Rather, the plaintiffs have merely demonstrated that there is a dispute as to whether all of the information Byerts provided to t he marshals was accurate. For example, the Mellotts presented evide nce that contradicted the FHA agent's account of his confrontation with W ilkie Mellott. It is

not relevant, however, that the Mellotts have disputed the agent's version of events. Rather, the critical question is whether th e agent's account was provided to the marshals by their supervisor. The m arshals testified that it was, and the plaintiffs point to no evidence ind icating otherwise.

2. We note that the marshals dispute nearly every m aterial factual allegation made by the plaintiffs, including the mo st serious claims that the deputy marshals pointed loaded guns at various individuals during the eviction. For purposes of summary judgment, how ever, we must view the evidence in the light most favorable to the non -moving party. See Peters v. Delaware River Port Authority, 16 F.3d 13 46, 1349 (3d Cir. 1994).

4there is evidence that the marshals were aware befo re the

eviction that Wilkie Mellott was recovering from he art surgery. Supp. App. at 9 n.3 & 42. Behind Seich, tw o more marshals entered the house along with a state troop er who
identified himself and said that he "was there for everybody's protection." App. at 266.

Also present in the Mellotts' home at the time of t he eviction were Michelle Hollinshead, a radio reporte r, and Jackie Wright, a friend of the Mellotts. When the m arshals entered the residence, Wright was in the front room with the Mellotts, and Hollinshead was in the kitchen on the telephone with the local sheriff. Hollinshead testi fied that one of the marshals ran into the kitchen, "pumped" his semi-automatic gun, "stuck it right in [her] face a nd . . . said: `Who are you talking to, hang up the phone.' " App. at 454-55. See also App. at 461-63. After Hollinshead continued talking, the marshal put his gun "to the back of her head" and told her to "[s]hut the hell up and h ang up the phone." App. at 455. At this point, Hollinshead hung up the phone, and the marshal put his gun into her bac k and shoved her down a hallway towards the front room.

In the meantime, while two marshals were conducting a sweep of the residence,3 Wilkie Mellott said he fel t ill and requested his medication. When Bonnie Mellott rose to get the medication, Deputy Heemer pushed her back into her
chair and asked her where the medication was locate d. After receiving this information, Heemer retrieved Wilkie
Mellott's medication and handed it to him.

At some point during the eviction, Bonnie Mellott overheard the marshals discussing their plans to re move Kirk Mellott from his residence, and she offered to accompany them to Kirk's house. The marshals reject ed this offer but agreed to allow Jackie Wright to com e with them. In their depositions, both Wright and Bonnie Mellott

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3. Our account of the facts does not include the pl aintiffs' allegations that the marshals violated the Constitution by "ran sacking" the Mellotts' former residences. See Appellees' Br. at 32-34. The district court found that the plaintiffs' "ransacking" claim did"not ris e to the level of a constitutional violation," Dist. Ct. Op. at 27 n.10 ; id. at 24, and the plaintiffs have not appealed this holding.

5explained that they were concerned about how Kirk m ight

react to the marshals, see App. at 272 & 426, and B onnie testified that she believed it would be helpful if Kirk saw a "familiar face." App. at 310. Before proceeding to Kirk's house, the deputy marshals directed Bonnie and Wilk ie Mellott to leave the property, and Deputy Heemer al legedly told them to start driving and not to look back or they
would be shot. Bonnie Mellott also testified that H eemer said they would be shot as trespassers if they went to
Kirk's house.

After the Mellotts departed, Jackie Wright drove to Kirk's residence in his own vehicle, followed by the marsh als and the state troopers. Wright testified that, once at the house, the marshals told him that he "was going to go thro ugh the door first ahead of them." App. at 429. One marshal advised Wright "that if anything goes wrong . . . y ou're going to be the first one to go down," and as they were "heading into the house," Wright felt a "gun in [hi s] back." Id. See also App. at 379. Wright entered the house without knocking and found Kirk Mellott sitting in his livi ng room with a bag full of his belongings. Defendant Heemer then approached Kirk, "aimed his gun at [his] chest, phy sically took [him] by the arm, spun him around and pushed h im up against the wall." App. at 386-87. After searchi ng Kirk's bag and conducting a sweep of the residence, the ma rshals

escorted the two men out of the house and ordered t hem off the property.

The plaintiffs filed an amended complaint in Januar y 1995, alleging, inter alia, that the individual def endants violated their Fourth Amendment right to be free fr om unreasonable seizures and their Fifth Amendment rig ht to substantive due process. The defendants moved for summary judgment on the ground that they were entit led to qualified immunity, and the district court denie d their motion, finding that there were material issues of fact as to (1) whether the defendants violated the plaintiffs' Fourth and Fifth Amendment rights by using excessive force during the eviction and (2) whether the defendants reasonably could have believed that their conduct d id not violate clearly established law. We have jurisdicti on over the defendants' appeal under the collateral order doctr ine. See

6Acierno v. Cloutier, 40 F.3d 597, 605 (3d Cir. 1994 ) (in

banc).

II

A. The marshals are entitled to qualified immunity if, at the time they acted, they reasonably could have bel ieved that their conduct did not violate the plaintiffs' clearly established constitutional rights. See Sharrar v. F elsing, 128 F.3d 810, 826 (3d Cir. 1997). In addressing the qualified immunity question, we first ask whether t he plaintiffs have "asserted a violation of a constitu tional right at all." Siegert v. Gilley, 500 U.S. 226, 232 (1991 ). Because we conclude that they have not, we must reverse the district court's denial of summary judgment.

The Supreme Court has instructed that "all claims t hat
law enforcement officers have used excessive force. . . in the course of a[ ] . . . `seizure' of a free citize n should be analyzed under the Fourth Amendment and its `reasonableness' standard, rather than under a `sub stantive due process' approach." Graham v. Connor, 490 U.S. 386, 395 (1989). Since all of the plaintiffs' excessive force claims in the instant case involve allegations that the ma rshals restrained the plaintiffs' liberty through physical force and the pointing of guns, we must analyze the plaintiff s' claims
under the Fourth Amendment. See id. at 395 n.10.

In order to prevail on a Fourth Amendment excessive force claim, a plaintiff must demonstrate that the defendant's use of force was not "objectively reaso nable." Graham v. Connor, 490 U.S. 386, 397 (1989). Proper application of this standard "requires careful atte ntion to the facts and circumstances of each particular case
, including the severity of the crime at issue, wheth er the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resi sting arrest or attempting to evade arrest by flight." Id. at 39 6. In addition, we have noted that it is important to con sider how many individuals the officers confronted and whethe r "the physical force applied was of such an extent as to lead to injury." Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997). When balancing these factors, we must rememb er

7that "[t]he `reasonableness' of a particular use of force must

be judged from the perspective of a reasonable offi cer on the scene, rather then with the 20/20 vision of hin dsight." Graham, 490 U.S. at 396. "The calculus of reasonabl eness must embody allowance for the fact that police offi cers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidl y evolving -- about the amount of force that is neces sary in a particular situation." Id. at 396-97. We must als o keep in mind that a threat that may seem insignificant to u s in the security of our chambers may appear more substantia l to a reasonable officer whose own life or safety is at s take.

B. Turning to the case before us, the plaintiffs' c laims all center on allegations that the deputy marshals pointed loaded guns at their heads, chests, and backs. In a ddition, Bonnie Mellott claims that she was pushed into a ch air on two occasions, and Jackie Wright claims that he was led at gunpoint into a potentially dangerous situation.

We have recently considered allegations of excessiv e force similar to those made here. In Sharrar, more than 2 0 law enforcement officers surrounded a house containing four suspects wanted in connection with a particularly v iolent
domestic assault. 128 F.3d at 814-816. After the su spects complied with the officers' instruction to exit the house backwards, they were ordered to lie face-down in th e dirt. Id. at 816. The plaintiffs claimed that, at this po int, the officers held guns to their heads, yelled obsceniti es, and threatened to "blow [their] brains out" if they mov ed. Id. at 816 & 821. While we acknowledged that the officers' alleged conduct "appear[ed] extreme," id. at 821, we conclu ded that
it did not violate the Fourth Amendment. Id. at 822

.

The marshals contend that their actions cannot be f ound unlawful since the Mellotts' "allegations of force . . . are minimal compared to the allegations of force found to be constitutionally permissible in Sharrar." Appellant s' Br. at 23. While we do not necessarily agree that the alle gations in this case are "minimal" compared to those in Sha rrar, we do believe that the explicit threats alleged in Sha rrar were at least as forceful as the implicit threats allege d here. However, contrary to the marshals' suggestion, it i s not enough simply to compare the force used in this cas e with

8the force employed by the officers in Sharrar. Seve ral of the

"reasonableness" factors discussed in Graham and Sh arrar weigh differently here than they did in Sharrar, wi th some favoring the Mellotts and others favoring the deput y marshals. Therefore, while comparison to Sharrar ca n be instructive, our reasonableness determination must ultimately turn on the unique facts and circumstanc es confronting the marshals in this case.

Looking first to the "severity of the crime" factor from Graham, we note that the marshals were not arrestin g the Mellotts for a violent crime, but rather were remov ing them from their former property after they repeatedly fa iled to obey a court order. We also note, however, that an eviction from a cherished family residence can be an emotion ally charged event. Turning to the "active resistance" f actor discussed in Graham, we conclude that this factor d oes not weigh in favor of the deputy marshals since there i s virtually no evidence of resistance during the evic tion itself.4 However, the final Graham factor --"threat to the s afety of officers or others" -- weighs heavily in the marsha ls' favor and leads us to conclude that their alleged conduct during the eviction was objectively reasonable at the time

.

Prior to the eviction, Supervisor Byerts informed t he deputy marshals that Wilkie Mellott had threatened to shoot any federal agent who came on his property, w as reported to own numerous firearms, and had chased a n FHA agent off his property with a pick-up truck. Mo reover, Byerts told the marshals that Kirk Mellott was cons idered

unstable and had stated that the Mellotts would not leave the property. In light of these warnings, the marsh als had significant reason to fear armed confrontation. Und er these circumstances, it was objectively reasonable for th e marshals to load and point their weapons in an effo rt to discourage resistance and ensure their own safety.

While the luxury of hindsight might enable us to th ink of alternatives to the marshals' actions, we must heed the

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4. Because Michelle Hollinshead's testimony indicat es that she did not hang up the phone immediately after being told to d o so by one of the marshals, this factor does weigh in favor of the de fendants with respect to actions taken after Hollinshead disobeyed the ma rshal's instruction.

9Supreme Court's admonition to account for the "tens e,

uncertain, and rapidly evolving" circumstances faci ng officers at the time of their actions. Here, when t he deputy

marshals entered the front room of the Mellotts' ho use, they discovered not only Bonnie and Wilkie Mellott, but a third unidentified individual, Jackie Wright, and t hey heard a fourth unidentified individual, Michelle Hollinsh ead, talking in another room. At the time, the marshals had no way of knowing to whom Hollinshead was speaking on the phone, and the marshals reasonably could have feare d that she was calling a confederate of the Mellotts. In t his respect, it is noteworthy that Kirk Mellott, whom t he deputy marshals believed to be unstable, had not yet been found. On a related note, we find that one of the addition al
reasonableness factors discussed in Sharrar -- "the number of persons with whom the police officers must conte nd at one time," 128 F.3d at 822 -- weighs significantly in the marshals' favor. Unlike in Sharrar, where there wer e over 20 officers on hand to confront four individuals wh o peaceably surrendered en masse, here there were few er than 10 officers present to contend with five indiv iduals who were not all found in the same place at the sam e time.

Our conclusion that the marshals acted reasonably i s further bolstered by another factor discussed in Sh arrar: whether the force applied by the officers led to ph ysical injury. Although Wilkie Mellott did experience ches t pains during the eviction, the marshals promptly retrieve d his medicine, and there is no allegation that Wilkie Me llott suffered any further complications. In addition, wh ile the plaintiffs claim that Bonnie Mellott was pushed int o a chair on two occasions, they present no evidence of resul ting physical injury. In this respect, we must be mindfu l of the Supreme Court's instruction that "[n]ot every push or shove . . . violates the Fourth Amendment." Graham, 490 U .S. at
396.

In sum, in light of the reports of the Mellotts' th reatening behavior, the uncertainty of the situation confront ing the marshals during the eviction, and the lack of any p hysical injury to the plaintiffs, we find that the force us ed by the marshals in confronting Bonnie Mellott, Wilkie Mell ott, Michelle Hollinshead, and Kirk Mellott was objectiv ely
reasonable at the time.

10C. Several arguments made by the dissent require a

brief response. First, contrary to the dissent's ar gument, this case is easily distinguishable from Baker v. M onroe Township, 50 F.3d 1186 (3d Cir. 1995). In Baker, th e court held, among other things, that the facts could supp ort a finding that certain law enforcement officers viola ted the Fourth Amendment when they pointed firearms at and handcuffed Inez Baker, two of her children, and a f oster daughter. These individuals had been invited to Sun day dinner at the apartment of Inez Baker's son, but th ey had the misfortune to arrive just as the officers were conducting a drug raid on the apartment. Viewing the facts in the light most favorable to the plaintiffs, the court conclud ed that "the appearances were those of a family paying a so cial visit" and that there was "simply no evidence of an ything
that should have caused the officers to use the kin d of force they are alleged to have used." Id. at 1193. Here, for the reasons already discussed, the marshals had reason to fear for their safety when they entered the Mellott resi dence.

The dissent points out that "defendant Heemer himse lf testified in his deposition that pointing a gun at an unarmed person was `absolutely' inappropriate condu ct." Dissent at 15, lines 39-40 to 16, line 1. But our t ask here is to apply constitutional standards, not standards of "appropriateness." Elder v. Holloway, 510 U.S. 510, 515 (1995); Davis v. Scherer, 468 U.S. 183, 193-96 & n. 14 (1984).

The dissent observes that "whatever fear the marsha ls
had to cause them to descend on the Mellott farm wi th guns blazing was immediately dissipated when they encountered a pastoral scene of several people sitt ing peaceably in a parlor." Dissent at 16, lines 24-27. Putting aside (a) the fact that the marshals' guns were nev er fired and thus were not "blazing" in the usual sense of t hat term and (b) the fact that violence can erupt in a "past oral" (i.e., country) setting, a reasonable officer was not, in our view, required to banish all fear upon seeing that Bonnie and Wilkie Mellott and Jackie Wright were sitting in th e parlor
with no firearms in view. A reasonable officer coul d have feared that firearms might be hidden and that the individuals in the parlor might have tried to obtai n access

11to them. A reasonable officer also could have feare d that

other persons might be in other rooms in the house. As we noted, the officers encountered one unidentified pe rson, Jackie Wright, in the parlor, heard another, Michel le Hollinshead, talking in another room, and had no knowledge of the whereabouts of Kirk Mellott.

The dissent states that "[w]hile it might have been reasonable for the marshals to approach and enter t he home in an aggressive mode," the officers should ha ve "adjust[ed] their response" when "Wilkie Mellott as sured [them] that no one else was in the house and since they knew the marshals were coming, he had removed the guns." Dissent at 16, lines 27-34. However, a law enforcement officer with his or her own safety at s take could have reasonably proceeded with greater skepti cism.

D. Jackie Wright's claim, while also subject to the considerations discussed above, is somewhat unique and requires additional analysis. The relevant facts, a s stated by Wright in his deposition, are as follows:

I pulled in front of [Kirk Mellott's] house and . . . walked back toward the marshals' car. [One o f the marshals] told me to come over there and I w alked over there. And he told me I was going to go thro ugh the door first ahead of them. And he said, I wan t to advise you that if anything goes wrong in here you' re going to be the first one to go down[,] and as we wer e heading into the house, I felt a gun in my back.

App. at 429. Based on this account, the plaintiffs contend that the marshals violated the Constitution by usin g Wright as an unwilling "human shield" in a potentially dan gerous situation.

We hold that the defendants are entitled to summary judgment on this claim because the evidence in the summary judgment record cannot support a finding th at Jackie Wright was seized or that a reasonable offic er could not have believed that Wright was not seized. " `[A ] person has been `seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.' " Californ ia v. Hodari

12D., 499 U.S. 621, 627-28 (1991), quoting United Sta tes v.

Mendenhall, 446 U.S. 544, 554 (1986) (opinion of St ewart, J.). See also Michigan v. Chesternut, 486 U.S. 567, 573 (1988); INS v. Delgado, 466 U.S. 210, 215 (1984). H ere, it is undisputed that the marshals did not restrain Wr ight's liberty when he accompanied them to Kirk Mellott's residence. The marshals did not compel Wright to go with them; on the contrary, they originally refused when Bonnie Mellott asked to accompany them but eventually acce ded to Wright's request. Thus, in order to survive summary judgment on his Fourth Amendment claim, Wright woul d have to point to evidence in the summary judgment r ecord, that at some point after he arrived at Kirk's house , he changed his mind and decided that he did not want t o enter the house with the marshals but that the mars hals forced him to do so. No such evidence, however, has been
called to our attention. There is no evidence that the marshals told Wright that he was not free to leave. Moreover, Wright did not state during his depositio n that
he ever told the marshals that he wished to leave o r to remain outside Kirk's house. Nor did he testify tha t the
marshals ever told him that he was not free to leav e or to stay outside the house.

In light of this background, the summary judgment
record is insufficient to convince a reasonable fac t finder that a reasonable person in Wright's position would have

felt that he was not free to leave the scene or to stay outside the house. Wright points to his deposition testimony that one of the marshals told him that he was "going to go through the door ahead of them" and th at if anything went wrong he was "going to be the first t o go down." App. 429. However, in light of the fact that Wright had sought permission to accompany the marshals whe n they went to find Kirk Mellott, this statement alon e was insufficient to convey to a reasonable person in Wr ight's position the message that he was not free to leave. Instead, the statement seems to convey the message that a condition of the permission given to Wright to ente r the house was that he take the most dangerous lead posi tion when the entry was made.

Wright notes that he "felt a gun in [his] back" as he walked into the house. App. 429. But, in light of t he

13background previously noted, this evidence is also

insufficient to convey to a reasonable person in Wr ight's position the message that he was not free to go. Wi th Wright in the lead and with the marshals following close behind with their guns drawn, it would not be surpr ising for Wright to feel a gun touch his back even though he was entering the house voluntarily. Taking the evidence in the summary judgment record as a whole, we hold that th ere is not enough to show that Wright was seized.

Moreover, even if a reasonable fact finder could co nclude that Wright was in fact seized, the defendants woul d still be entitled to summary judgment based on qualified immunity. A reasonable officer in the position of t he marshals could easily have thought that a reasonabl e person in Wright's position -- having asked to acco mpany them, having never expressed a desire to depart or to stay outside the house, and having never been told that he was
not free to do so -- would not feel that his libert y was restrained.5

III

For the reasons explained above, we reverse the dis trict court's denial of the defendants' summary judgment motion, and we remand for the entry of judgment in their

favor.

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5. In arguing that Wright's "human shield" claim sh ould be analyzed under Fourth Amendment, rather that substantive due process, standards, the defendants' reply brief states that "it is difficult to imagine a more clear allegation of "seizure" of one 's person than claiming that a law enforcement officer held one at gun poin t as a human shield." Reply Br. at 13. We do not interpret this as a conc ession that Wright was in fact seized. Rather, we interpret this state ment to mean only that compelling a person to function as a human shield w ould constitute a
seizure.

14RENDELL, Circuit Judge, dissenting:

The majority's conclusion that the conduct in this case was, without doubt, objectively reasonable and not excessive based upon plaintiff's chilling tale runs counter to our Fourth Amendment jurisprudence as most recen tly explicated in Baker v. Monroe Township, 50 F.3d 118 6 (3d Cir. 1995) -- relied upon by the district court but not mentioned in the majority's opinion -- and Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997). I must part c ompany with my colleagues because I agree with the distric t court's
well-reasoned determination that the issue of

reasonableness of the marshals' conduct under the circumstances of this case is properly a question f or the jury.

In Baker, we addressed conduct similar to the marsh als' actions here, namely, the pointing of guns, as well as the use of handcuffs, stating that the use of this type of force must be justified by the circumstances. We noted th at "we must look at the intrusiveness of all aspects of th e incident in the aggregate." 50 F.3d at 1193. Baker involved a police stop and detention of three individuals entering a residence while the police were conducting a drug raid. The p olice stopped them, pushed them down to the ground with g uns drawn, and handcuffed and detained them for 15-25 minutes. We reversed the district court's grant of qualified immunity because there was sufficient evidence from which a jury could find a Fourth Amendment violation. The police
in Baker admitted that the use of handcuffs would h ave been "inappropriate" until there was an arrest. We assessed the police conduct in the following terms:

Here, accepting the Bakers' testimony, the p olice used all of those intrusive methods without any r eason to feel threatened by the Bakers, or to fear th e Bakers would escape . . . the appearances were thos e of a family paying a social visit . . . there is simply no evidence of anything that should have caused the officers to use the kind of force they are a lleged to have

used.

Id. Similarly, in this case, defendant Heemer himse lf testified in his deposition that pointing a gun at an

15unarmed person was "absolutely" inappropriate condu ct.

Further, the marshals encountered a peaceful scene with no indication of resistance or force on the part of the Mellotts, and there is no evidence of anything that should
have caused them to use the force indicated here.

The majority distinguishes the instant situation on the basis of the threat to the safety of the officers. However, in reality, a jury might well determine that the likel ihood of violence toward the marshals was not so great, give n the context of the incident discussed below, and the fa ct that the only person who had witnessed aggressive behavi or on the part of the Mellotts was an agent of the Farmer s Home Administration who had been chased off the farm pro perty by Mellott in a pickup truck.

The court's opinion fails to note a few facts which could color a jury's view of the overall atmosphere and c ontext of the incident in question. First, the Mellotts had m ade themselves notorious for their litigious ways, and they, along with other farmers being counseled by the sam e advisor, were suing the Farmers Home Administration . This fact was not lost on the marshals effecting the evi ctions. Nor, I would imagine, were they unaware that the Me llotts were testing the patience of various federal agenci es.1 Furthermore, whatever fear the marshals had to caus e them to descend on the Mellott farm with guns blazi ng was immediately dissipated when they encountered a past oral scene of several people sitting peaceably in a parl or. While it might have been reasonable for the marshals to a pproach and enter the home in an aggressive mode, the clear ly passive conduct of those present should have caused them to adjust their response to the situation according ly. Officer Heemer testified specifically that Wilkie Mellott a ssured him that no one else was in the house and since they kn ew the marshals were coming, he had removed the guns. The force used thereafter was not clearly, objectively reason able, and, given our precedent in Baker as a guide, the jury s hould be the judge of this conduct. I also disagree with the majority's view that Jackie Wright's Fourth Amendment rights w ere

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1. Mrs. Mellott testified that the bankruptcy judge said he would "make an example" of them.

16not violated as a matter of law as he accompanied t he

marshals to Kirk Mellott's house, notwithstanding h aving a gun in his back and being told he would be first to go down if anything went wrong. I find this situation as pr esenting at least an arguable seizure, depending upon whose version of the facts the jury believes.

Although the majority analogizes this situation to Sharrar, I submit that the facts in that case are q uite different. Sharrar involved the propriety of the ar rests of individuals wanted for assault, holed up in a home in an otherwise peaceful seashore community, and the exte nt of force employed by teams of law enforcement personne l in surrounding the residence and effecting the arrest of these individuals. The majority in Sharrar stated that th e Rambotype behavior under the circumstances came "close t o the line," although not constituting a Fourth Amendment
violation. 128 F.3d at 822.

Here, where seven marshals detained and terrorized a family and friends, and ransacked a home, while car rying out an unresisted civil eviction, their conduct, wh ich could be described as Gestapo-like, is even closer to the line, if not over the line. We should not cloak it in the pr otective veil of immunity at the summary judgment stage. Jus t as in Baker, where we reversed summary judgment granti ng qualified immunity so that a jury could judge the o bjective reasonableness of the police conduct, here we shoul d affirm the excellent reasoning of the district court, foll owing our precedent in Baker, that genuine issues exist as to the
reasonableness of the marshals' behavior. The matte r should proceed to trial on the issue of the alleged violations of the Fourth Amendment rights of all of the plaint iffs and the marshals' entitlement to qualified immunity. I would
affirm.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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