1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-5-1998

Mellott v. Heemer

Precedential or Non-Precedential:

Docket 97-7437

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Recommended Citation

"Mellott v. Heemer" (1998). 1998 Decisions. Paper 257.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/257
Filed 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 Appellants 
 DONALD 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 courtordered eviction. On appeal, the marshals contend that the 

district court erred by refusing to grant summary judgment 

in their favor on grounds of qualified immunity. Because we 

conclude that the marshals are entitled to summary 

judgment on all the plaintiffs' claims, we reverse.

I 

Bonnie and Wilkie Mellott ("the Mellotts") are former 

owners of land in Pennsylvania on which they resided and 

operated a dairy farm. The Mellotts' son, Kirk, also resided 

on the property in a separate house located about a mile 

away from his parents' home. In the early 1980s, the 

Mellotts borrowed money to purchase additional land and 

to make improvements on their farm. After falling far 

behind in their debt payments, the Mellotts filed a

voluntary petition for bankruptcy in 1989. The Mellotts' 

property was sold at a public auction in November 1992, 

and the bankruptcy court issued an order directing the 

Mellotts to vacate the premises by December 10, 1992. 

The Mellotts failed to leave their former property by that 

date, and the bankruptcy court issued an order of 

contempt on December 21, 1992. The court directed the 

Mellotts, under penalty of incarceration and/or fine, to 

vacate the premises by December 28, 1992. The Mellotts 

still refused to leave and instead responded byfiling a 

motion to vacate the judgment, a notice of appeal, a motion 

to disqualify the bankruptcy judge, and a notice of motion 

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

denied the Mellotts' motions and signed a writ of assistance 

directing the United States Marshal Service to serve the 

Mellotts with a notice stating that all persons and personal 

property had to be removed from the premises by January 

5, 1993. The deputy marshals testified that they posted the 

notices at the Mellotts' residence on December 31, 1992, 

and Kirk Mellott testified that he found a notice on his door 

that same day. Kirk further testified that he discussed the 

notice with his parents and understood that the notice 

ordered him to vacate the premises. 

After the Mellotts again failed to leave by the ordered 

date, the bankruptcy court issued a writ of assistance, 

dated January 11, 1993, directing the United States

Marshal Service to secure the auctioned land and remove 

all persons from the premises. Upon receipt of the writ, 

Supervisory Deputy United States Marshal Robert Byerts 

assigned Deputy Marshal Don Heemer to head a team of 

five deputy marshals ("the marshals") that would remove 

the Mellotts from the property. Byerts testified that he 

provided the marshals with the following information prior 

to the eviction: 

 a. The Bankruptcy Court had requested additional 

 security for hearings at which the Mellotts were 

 expected to appear; 

 b. A Farmers Home Administration [FHA] County 

 Supervisor had reported that Wilkie Mellott had 

 chased him off the Mellott property at the front of 

 a pick-up truck; that Wilkie Mellott had displayed 

 a handgun after chasing the County Supervisor off 

 the property in a pick-up truck; that Wilkie Mellott 

 had threatened to shoot any federal agent that 

 came on his property; and that the County 

 Supervisor had felt his life had been threatened by 

 Wilkie Mellott. 

 c. The Mellotts were reported to own numerous 

 firearms. 

 d. Kirk Mellott had recently sustained a serious head 

 injury and was considered unstable. 

 e. Kirk Mellott had informed Deputy Marshals Regan 

 and Knicely that the Mellotts were not going to 

 leave the farms. 

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

(deposition of Donald Heemer); App. 182-85 (deposition of 

David Seich).1 Byerts further testified that the marshals 

wore bullet-proof vests and "were authorized to use a short 

shotgun and an AR-15 semi-automatic rifle in the removal 

operation because of concerns that they might meet armed 

resistance at the Mellott residences." App. 59. 

On the morning of January 21, 1993, the marshals met 

with at least two uniformed state troopers and drove to the 

Mellotts' residence. Viewing the evidence in the light most 

favorable to the plaintiffs, the eviction proceeded as follows.2 

When the officers arrived at the Mellotts' residence, they 

approached the house, and Deputy Marshal Heemer 

knocked on the front door. After Bonnie Mellott answered 

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 house 

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. at 265. 

See also App. at 440-41. With respect to this encounter, 

_________________________________________________________________ 

1. Like the district court, we consider the existence 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 briefing took place. Rather, 

the plaintiffs have merely demonstrated that there is a dispute as to 

whether all of the information Byerts provided to the marshals was 

accurate. For example, the Mellotts presented evidence that contradicted 

the FHA agent's account of his confrontation with Wilkie Mellott. It is 

not 

relevant, however, that the Mellotts have disputed the agent's version of 

events. Rather, the critical question is whether the agent's account was 

provided to the marshals by their supervisor. The marshals testified that 

it was, and the plaintiffs point to no evidence indicating otherwise. 

2. We note that the marshals dispute nearly every material factual 

allegation made by the plaintiffs, including the most serious claims that 

the deputy marshals pointed loaded guns at various individuals during 

the eviction. For purposes of summary judgment, however, 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 1346, 1349 (3d Cir. 

1994). 

 4 
there is evidence that the marshals were aware before the 

eviction that Wilkie Mellott was recovering from heart 

surgery. Supp. App. at 9 n.3 & 42. Behind Seich, two more 

marshals entered the house along with a state trooper 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 the 

eviction were Michelle Hollinshead, a radio reporter, and 

Jackie Wright, a friend of the Mellotts. When the marshals 

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 testified that 

one of the marshals ran into the kitchen, "pumped" his 

semi-automatic gun, "stuck it right in [her] face and . . . 

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 hang up 

the phone." App. at 455. At this point, Hollinshead hung up 

the phone, and the marshal put his gun into her back 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 felt 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 located. 

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 remove 

Kirk Mellott from his residence, and she offered to

accompany them to Kirk's house. The marshals rejected 

this offer but agreed to allow Jackie Wright to come with 

them. In their depositions, both Wright and Bonnie Mellott 

_________________________________________________________________ 

3. Our account of the facts does not include the plaintiffs' allegations 

that the marshals violated the Constitution by "ransacking" the Mellotts' 

former residences. See Appellees' Br. at 32-34. The district court found 

that the plaintiffs' "ransacking" claim did"not rise 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. 

 5 
explained that they were concerned about how Kirk might 

react to the marshals, see App. at 272 & 426, and Bonnie 

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 Wilkie 

Mellott to leave the property, and Deputy Heemer allegedly 

told them to start driving and not to look back or they 

would be shot. Bonnie Mellott also testified that Heemer 

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 marshals and 

the state troopers. Wright testified that, once at the house, 

the marshals told him that he "was going to go through the 

door first ahead of them." App. at 429. One marshal

advised Wright "that if anything goes wrong . . . you're 

going to be the first one to go down," and as they were 

"heading into the house," Wright felt a "gun in [his] back." 

Id. See also App. at 379. Wright entered the house without 

knocking and found Kirk Mellott sitting in his living room 

with a bag full of his belongings. Defendant Heemer then 

approached Kirk, "aimed his gun at [his] chest, physically 

took [him] by the arm, spun him around and pushed him 

up against the wall." App. at 386-87. After searching Kirk's 

bag and conducting a sweep of the residence, the marshals 

escorted the two men out of the house and ordered them off 

the property. 

The plaintiffs filed an amended complaint in January 

1995, alleging, inter alia, that the individual defendants 

violated their Fourth Amendment right to be free from 

unreasonable seizures and their Fifth Amendment right to 

substantive due process. The defendants moved for 

summary judgment on the ground that they were entitled 

to qualified immunity, and the district court denied 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 did not 

violate clearly established law. We have jurisdiction over the 

defendants' appeal under the collateral order doctrine. See 

 6 
Acierno 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 believed 

that their conduct did not violate the plaintiffs' clearly 

established constitutional rights. See Sharrar v. Felsing, 

128 F.3d 810, 826 (3d Cir. 1997). In addressing the

qualified immunity question, we first ask whether the 

plaintiffs have "asserted a violation of a constitutional 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 that 

law enforcement officers have used excessive force. . . in 

the course of a[ ] . . . `seizure' of a free citizen should be 

analyzed under the Fourth Amendment and its 

`reasonableness' standard, rather than under a `substantive 

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 marshals 

restrained the plaintiffs' liberty through physical force and 

the pointing of guns, we must analyze the plaintiffs' 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 reasonable." 

Graham v. Connor, 490 U.S. 386, 397 (1989). Proper 

application of this standard "requires careful attention to 

the facts and circumstances of each particular case, 

including the severity of the crime at issue, whether the 

suspect poses an immediate threat to the safety of the 

officers or others, and whether he is actively resisting arrest 

or attempting to evade arrest by flight." Id. at 396. In 

addition, we have noted that it is important to consider how 

many individuals the officers confronted and whether "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 remember 

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

be judged from the perspective of a reasonable officer on 

the scene, rather then with the 20/20 vision of hindsight." 

Graham, 490 U.S. at 396. "The calculus of reasonableness 

must embody allowance for the fact that police officers are 

often forced to make split-second judgments -- in 

circumstances that are tense, uncertain, and rapidly 

evolving -- about the amount of force that is necessary in 

a particular situation." Id. at 396-97. We must also keep in 

mind that a threat that may seem insignificant to us in the 

security of our chambers may appear more substantial to a 

reasonable officer whose own life or safety is at stake. 

B. Turning to the case before us, the plaintiffs' claims 

all center on allegations that the deputy marshals pointed 

loaded guns at their heads, chests, and backs. In addition, 

Bonnie Mellott claims that she was pushed into a chair on 

two occasions, and Jackie Wright claims that he was led at 

gunpoint into a potentially dangerous situation. 

We have recently considered allegations of excessive force 

similar to those made here. In Sharrar, more than 20 law 

enforcement officers surrounded a house containing four 

suspects wanted in connection with a particularly violent 

domestic assault. 128 F.3d at 814-816. After the suspects 

complied with the officers' instruction to exit the house 

backwards, they were ordered to lie face-down in the dirt. 

Id. at 816. The plaintiffs claimed that, at this point, the 

officers held guns to their heads, yelled obscenities, and 

threatened to "blow [their] brains out" if they moved. Id. at 

816 & 821. While we acknowledged that the officers' alleged 

conduct "appear[ed] extreme," id. at 821, we concluded that 

it did not violate the Fourth Amendment. Id. at 822. 

The marshals contend that their actions cannot be found 

unlawful since the Mellotts' "allegations of force . . . are 

minimal compared to the allegations of force found to be 

constitutionally permissible in Sharrar." Appellants' Br. at 

23. While we do not necessarily agree that the allegations 

in this case are "minimal" compared to those in Sharrar, we 

do believe that the explicit threats alleged in Sharrar were 

at least as forceful as the implicit threats alleged here. 

However, contrary to the marshals' suggestion, it is not 

enough simply to compare the force used in this case with 

 8 
the force employed by the officers in Sharrar. Several of the 

"reasonableness" factors discussed in Graham and Sharrar 

weigh differently here than they did in Sharrar, with some 

favoring the Mellotts and others favoring the deputy 

marshals. Therefore, while comparison to Sharrar can be 

instructive, our reasonableness determination must 

ultimately turn on the unique facts and circumstances 

confronting the marshals in this case. 

Looking first to the "severity of the crime" factor from 

Graham, we note that the marshals were not arresting the 

Mellotts for a violent crime, but rather were removing them 

from their former property after they repeatedly failed to 

obey a court order. We also note, however, that an eviction 

from a cherished family residence can be an emotionally 

charged event. Turning to the "active resistance" factor 

discussed in Graham, we conclude that this factor does not 

weigh in favor of the deputy marshals since there is 

virtually no evidence of resistance during the eviction itself.4 

However, the final Graham factor --"threat to the safety of 

officers or others" -- weighs heavily in the marshals' 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 the 

deputy marshals that Wilkie Mellott had threatened to 

shoot any federal agent who came on his property, was 

reported to own numerous firearms, and had chased an 

FHA agent off his property with a pick-up truck. Moreover, 

Byerts told the marshals that Kirk Mellott was considered 

unstable and had stated that the Mellotts would not leave 

the property. In light of these warnings, the marshals had 

significant reason to fear armed confrontation. Under these 

circumstances, it was objectively reasonable for the 

marshals to load and point their weapons in an effort to 

discourage resistance and ensure their own safety. 

While the luxury of hindsight might enable us to think of 

alternatives to the marshals' actions, we must heed the 

_________________________________________________________________ 

4. Because Michelle Hollinshead's testimony indicates that she did not 

hang up the phone immediately after being told to do so by one of the 

marshals, this factor does weigh in favor of the defendants with respect 

to actions taken after Hollinshead disobeyed the marshal's instruction. 

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

uncertain, and rapidly evolving" circumstances facing 

officers at the time of their actions. Here, when the deputy 

marshals entered the front room of the Mellotts' house, 

they discovered not only Bonnie and Wilkie Mellott, but a 

third unidentified individual, Jackie Wright, and they heard 

a fourth unidentified individual, Michelle Hollinshead, 

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 feared that 

she was calling a confederate of the Mellotts. In this 

respect, it is noteworthy that Kirk Mellott, whom the deputy 

marshals believed to be unstable, had not yet been found. 

On a related note, we find that one of the additional 

reasonableness factors discussed in Sharrar -- "the number 

of persons with whom the police officers must contend at 

one time," 128 F.3d at 822 -- weighs significantly in the 

marshals' favor. Unlike in Sharrar, where there were over 

20 officers on hand to confront four individuals who 

peaceably surrendered en masse, here there were fewer 

than 10 officers present to contend with five individuals 

who were not all found in the same place at the same time. 

Our conclusion that the marshals acted reasonably is 

further bolstered by another factor discussed in Sharrar: 

whether the force applied by the officers led to physical 

injury. Although Wilkie Mellott did experience chest pains 

during the eviction, the marshals promptly retrieved his 

medicine, and there is no allegation that Wilkie Mellott 

suffered any further complications. In addition, while the 

plaintiffs claim that Bonnie Mellott was pushed into a chair 

on two occasions, they present no evidence of resulting 

physical injury. In this respect, we must be mindful 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' threatening 

behavior, the uncertainty of the situation confronting the 

marshals during the eviction, and the lack of any physical 

injury to the plaintiffs, we find that the force used by the 

marshals in confronting Bonnie Mellott, Wilkie Mellott, 

Michelle Hollinshead, and Kirk Mellott was objectively 

reasonable at the time. 

 10 
C. Several arguments made by the dissent require a 

brief response. First, contrary to the dissent's argument, 

this case is easily distinguishable from Baker v. Monroe 

Township, 50 F.3d 1186 (3d Cir. 1995). In Baker, the court 

held, among other things, that the facts could support a 

finding that certain law enforcement officers violated the 

Fourth Amendment when they pointed firearms at and 

handcuffed Inez Baker, two of her children, and a foster 

daughter. These individuals had been invited to Sunday 

dinner at the apartment of Inez Baker's son, but they 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 concluded that 

"the appearances were those of a family paying a social 

visit" and that 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. Here, for the 

reasons already discussed, the marshals had reason to fear 

for their safety when they entered the Mellott residence. 

The dissent points out that "defendant Heemer himself 

testified in his deposition that pointing a gun at an 

unarmed person was `absolutely' inappropriate conduct." 

Dissent at 15, lines 39-40 to 16, line 1. But our task 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 marshals 

had to cause them to descend on the Mellott farm with 

guns blazing was immediately dissipated when they 

encountered a pastoral scene of several people sitting 

peaceably in a parlor." Dissent at 16, lines 24-27. Putting 

aside (a) the fact that the marshals' guns were never fired 

and thus were not "blazing" in the usual sense of that term 

and (b) the fact that violence can erupt in a "pastoral" (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 the parlor 

with no firearms in view. A reasonable officer could have 

feared that firearms might be hidden and that the 

individuals in the parlor might have tried to obtain access 

 11 
to them. A reasonable officer also could have feared that 

other persons might be in other rooms in the house. As we 

noted, the officers encountered one unidentified person, 

Jackie Wright, in the parlor, heard another, Michelle 

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 the 

home in an aggressive mode," the officers should have 

"adjust[ed] their response" when "Wilkie Mellott assured 

[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 stake 

could have reasonably proceeded with greater skepticism. 

D. Jackie Wright's claim, while also subject to the

considerations discussed above, is somewhat unique and 

requires additional analysis. The relevant facts, as 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 of the 

 marshals] told me to come over there and I walked over 

 there. And he told me I was going to go through the 

 door first ahead of them. And he said, I want to advise 

 you that if anything goes wrong in here you're going to 

 be the first one to go down[,] and as we were 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 using Wright 

as an unwilling "human shield" in a potentially dangerous 

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 that 

Jackie Wright was seized or that a reasonable officer 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.' " California v. Hodari 

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

Mendenhall, 446 U.S. 544, 554 (1986) (opinion of Stewart, 

J.). See also Michigan v. Chesternut, 486 U.S. 567, 573 

(1988); INS v. Delgado, 466 U.S. 210, 215 (1984). Here, it 

is undisputed that the marshals did not restrain Wright'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 acceded to 

Wright's request. Thus, in order to survive summary

judgment on his Fourth Amendment claim, Wright would 

have to point to evidence in the summary judgment record, 

that at some point after he arrived at Kirk's house, he 

changed his mind and decided that he did not want to 

enter the house with the marshals but that the marshals 

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 deposition that 

he ever told the marshals that he wished to leave or to 

remain outside Kirk's house. Nor did he testify that the 

marshals ever told him that he was not free to leave or to 

stay outside the house. 

In light of this background, the summary judgment 

record is insufficient to convince a reasonable fact 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 that if 

anything went wrong he was "going to be the first to go 

down." App. 429. However, in light of the fact that Wright 

had sought permission to accompany the marshals when 

they went to find Kirk Mellott, this statement alone was 

insufficient to convey to a reasonable person in Wright'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 enter the 

house was that he take the most dangerous lead position 

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 the 

 13 
background previously noted, this evidence is also 

insufficient to convey to a reasonable person in Wright's 

position the message that he was not free to go. With 

Wright in the lead and with the marshals following close 

behind with their guns drawn, it would not be surprising 

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 there is 

not enough to show that Wright was seized. 

Moreover, even if a reasonable fact finder could conclude 

that Wright was in fact seized, the defendants would still be 

entitled to summary judgment based on qualified 

immunity. A reasonable officer in the position of the 

marshals could easily have thought that a reasonable 

person in Wright's position -- having asked to accompany 

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 liberty was 

restrained.5 

III 

For the reasons explained above, we reverse the district 

court's denial of the defendants' summary judgment 

motion, and we remand for the entry of judgment in their 

favor. 

_________________________________________________________________ 

5. In arguing that Wright's "human shield" claim should 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 point as a human shield." 

Reply Br. at 13. We do not interpret this as a concession that Wright 

was in fact seized. Rather, we interpret this statement to mean only that 

compelling a person to function as a human shield would constitute a 

seizure. 

 14 
RENDELL, 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 recently 

explicated in Baker v. Monroe Township, 50 F.3d 1186 (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 company 

with my colleagues because I agree with the district court's 

well-reasoned determination that the issue of 

reasonableness of the marshals' conduct under the 

circumstances of this case is properly a question for the 

jury. 

In Baker, we addressed conduct similar to the marshals' 

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 that "we 

must look at the intrusiveness of all aspects of the 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 police 

stopped them, pushed them down to the ground with guns 

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 have 

been "inappropriate" until there was an arrest. We assessed 

the police conduct in the following terms: 

 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 . . . the appearances were those 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 alleged to have 

 used. 

Id. Similarly, in this case, defendant Heemer himself 

testified in his deposition that pointing a gun at an 

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unarmed person was "absolutely" inappropriate conduct. 

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 likelihood of 

violence toward the marshals was not so great, given the 

context of the incident discussed below, and the fact that 

the only person who had witnessed aggressive behavior on 

the part of the Mellotts was an agent of the Farmers Home 

Administration who had been chased off the farm property 

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 context of 

the incident in question. First, the Mellotts had made 

themselves notorious for their litigious ways, and they, 

along with other farmers being counseled by the same 

advisor, were suing the Farmers Home Administration. This 

fact was not lost on the marshals effecting the evictions. 

Nor, I would imagine, were they unaware that the Mellotts 

were testing the patience of various federal agencies.1 

Furthermore, whatever fear the marshals had to cause 

them to descend on the Mellott farm with guns blazing was 

immediately dissipated when they encountered a pastoral 

scene of several people sitting peaceably in a parlor. While 

it might have been reasonable for the marshals to approach 

and enter the home in an aggressive mode, the clearly 

passive conduct of those present should have caused them 

to adjust their response to the situation accordingly. Officer 

Heemer testified specifically that Wilkie Mellott assured him 

that no one else was in the house and since they knew the 

marshals were coming, he had removed the guns. The force 

used thereafter was not clearly, objectively reasonable, and, 

given our precedent in Baker as a guide, the jury should be 

the judge of this conduct. I also disagree with the majority's 

view that Jackie Wright's Fourth Amendment rights were 

_________________________________________________________________ 

1. Mrs. Mellott testified that the bankruptcy judge said he would "make 

an example" of them. 

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not violated as a matter of law as he accompanied the 

marshals to Kirk Mellott's house, notwithstanding having a 

gun in his back and being told he would be first to go down 

if anything went wrong. I find this situation as presenting 

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 quite 

different. Sharrar involved the propriety of the arrests of 

individuals wanted for assault, holed up in a home in an 

otherwise peaceful seashore community, and the extent of 

force employed by teams of law enforcement personnel in 

surrounding the residence and effecting the arrest of these 

individuals. The majority in Sharrar stated that the Rambotype behavior under the circumstances came "close to 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 carrying 

out an unresisted civil eviction, their conduct, which could 

be described as Gestapo-like, is even closer to the line, if 

not over the line. We should not cloak it in the protective 

veil of immunity at the summary judgment stage. Just as 

in Baker, where we reversed summary judgment granting 

qualified immunity so that a jury could judge the objective 

reasonableness of the police conduct, here we should affirm 

the excellent reasoning of the district court, following our 

precedent in Baker, that genuine issues exist as to the 

reasonableness of the marshals' behavior. The matter 

should proceed to trial on the issue of the alleged violations 

of the Fourth Amendment rights of all of the plaintiffs 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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