IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 

TIMOTHY J. DUNMIRE, : No. 05 CV 0081 

 Plaintiff : 

 : 

 Vs. : 

 : 

STEPHEN M. DETZ and : 

ERIC ZIMMERMAN, : 

 Defendants : 

PROPOSED POINTS

FOR CHARGE ON BEHALF OF PLAINTIFF

AND NOW, comes the Plaintiff, through his counsel, and files the following Proposed 

Points for Charge: 

 1. Plaintiff consents to and incorporates by reference herein those Points for Charge 

filed on behalf of Defendants, as follows: 2-9; 15-16; 22-23; 25-26; 28-31; 33. 

 2. A warrantless entry into a home by a police officer is a presumptively 

unreasonable search under the Fourth Amendment. Payton vs. New York, 445 U.S. 573, 100 

S.Ct. 1371, 63 L.Ed. 2d 639 (1980). The Fourth Amendment applies to all invasions on the part 

of the government and its employees to the sanctity of a man’s home and the privacies of life. 

The physical entry of the home is the chief evil against which the wording of the Fourth 

Amendment is directed. 

Case 2:05-cv-00081-BMS Document 35 Filed 09/26/05 Page 1 of 4
2

 3. In this case, it is undisputed that the Defendants entered the home of Plaintiff 

without a warrant and without the consent of Plaintiff. In order to rebut the presumption that this 

entry, in the absence of a warrant, was unreasonable, Defendants must show some exception to 

the warrant requirement. The exception relied upon them is known as “exigent circumstances.” 

You may find that the exception of “exigent circumstances” applies here if you conclude, by a 

preponderance of the evidence, that a reasonable basis existed for the belief that there was a “risk 

of danger” to persons inside the apartment at the time. Minnesota v. Olson, 495 U.S. 91, 110 

S.Ct. 1684, 109 L.Ed. 2d 85 (1990). 

 4. [Otherwise stated at Defendants’ No. 10] Plaintiff is claiming that his Fourth 

Amendments rights to be free from the use of force to effect a detention, however brief, were 

violated. The test you should use is whether the Defendants’ actions were “objectively 

reasonable” in light of all of the facts and circumstances confronting them, that is, the totality of 

the circumstances, in the performance of their duties, without regard to their underlying intent or 

motivation. 

 The “totality of the circumstances” to be considered by you implies that all of the factors 

bearing on the Defendants’ use of force are to be considered when deciding the reasonableness 

of the actions taken, including events preceding the actual seizure of Plaintiff. 

 5. [Otherwise stated at Defendants’ No. 21] In this case, Defendants have asserted 

their good faith, qualified immunity as a defense to Plaintiff’s claims. A municipal officer who 

reasonably, but mistakenly, concludes that his actions are lawful is entitled to immunity. This 

immunity may be denied by you if you find that the unlawfulness of the Defendants’ actions was 

Case 2:05-cv-00081-BMS Document 35 Filed 09/26/05 Page 2 of 4
3

so apparent that no reasonable official in their situation could have believed that their actions 

were lawful. 

 If you find that, under the circumstances, a municipal police officer in the shoes of 

Defendants would have concluded that their actions were reasonable and lawful under clearly 

established law, and under the circumstances of this case, then you may find that the Defendants 

are immune from liability. 

 6. [Otherwise stated at Defendants’ No. 27] The Pennsylvania legislature has 

enacted a statute, the Political Subdivision Tort Claims Act, which provides that employees of a 

local government agency are immune under some circumstances for liability for civil damages. 

This immunity only applies to the state law claims and does not apply to the federal claims raised 

by Plaintiff. 

 7. [Otherwise stated at Defendants’ No. 34] Punitive damages are damages, other 

than compensatory or nominal damages, awarded as a deterrent and to punish gross violations of 

constitutional rights. To establish a claim for punitive damages, the Plaintiff must prove by a 

preponderance of the evidence that the Defendant knowingly and maliciously deprived him of 

his civil rights. You may assess punitive damages if you find, by a preponderance of the 

evidence, that the Defendants’ conduct is shown to be motivated by evil motive or intent or if it 

involved reckless or callous indifference to the federally protected rights of the Plaintiff. 

 The law requires a high degree of culpability on the part of Defendants to support a claim 

for punitive damages. Punitive damages may be awarded for reckless or callous indifference to 

the rights of others, but they may not be awarded for misconduct which constitutes ordinary 

negligence such as inadvertence, mistake or error. 

Case 2:05-cv-00081-BMS Document 35 Filed 09/26/05 Page 3 of 4
4

 If you determine that any Defendant violated Plaintiff’s constitutional rights, you may, 

but are not required to, determine whether punitive damages are to be assessed against that 

Defendant. Thus, if you find by a preponderance of the evidence that any Defendant is liable to 

Plaintiff and you further find by a preponderance of the evidence that the actions of that 

Defendant were taken maliciously, wantonly or oppressively, or were pursued with reckless or 

callous indifference to the rights of Plaintiff, then you may award punitive damages against that 

Defendant. 

 REILLY, WOLFSON, SHEFFEY, SCHRUM 

 AND LUNDBERG LLP 

 By: /s/ Harry W. Fenton 

 Harry W. Fenton, ID #55656 

 Counsel for Plaintiff 

 1601 Cornwall Road 

 Lebanon, PA 17042 

 (717) 273-3733 

Date: September 26, 2005 

Case 2:05-cv-00081-BMS Document 35 Filed 09/26/05 Page 4 of 4