1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-26-1995

Bodine v. Warwick

Precedential or Non-Precedential:

Docket 94-7510

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Recommended Citation

"Bodine v. Warwick" (1995). 1995 Decisions. Paper 316.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/316
1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

____________ 

Nos. 94-7510 and 94-7621 

____________ 

HARRY W. BODINE, JR., 

Appellant in 94-7510 

v. 

JAMES WARWICK, Trooper; RICHARD FRUNZI, 

Trooper; PHILIP PITT, Trooper; STATE OF 

DELAWARE; CLIFFORD M. GRAVIET, Colonel; 

ARTHUR BLANSFIELD, Captain 

Trooper James Warwick; Trooper Richard 

Frunzi, Trooper Philip Pitt, 

Appellants in 94-7621 

____________________ 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF DELAWARE 

(D.C. Civil No. 92-00727) 

____________________ 

Argued: June 8, 1995 

Before: BECKER, NYGAARD, and ALITO, Circuit Judges

(Opinion Filed: December 26, 1995) 

____________________ 

 MARK B. FROST, ESQ. (Argued) 

 Pier 5 at Penn's Landing 

 Philadelphia, PA 19106 

 Attorney for Appellant/

 Cross Appellee, Harry W. Bodine

 GREGG E. WILSON, ESQ. (Argued) 

 JEFFREY M. TASCHER 

 Deputy Attorneys General 

 DEPARTMENT OF JUSTICE 

 820 N. French Street 

 Wilmington, DE 19801 
2 

 Attorneys for Appellees/

 Cross Appellants, Warwick, Frunzi

 and Pitt

____________________ 

OPINION OF THE COURT 

____________________ 

ALITO, Circuit Judge: 

 Harry W. Bodine, Jr. filed this action, seeking, among 

other things, to recover under 42 U.S.C. §1983 on claims that 

certain Delaware State Troopers violated his Fourth Amendment 

rights by illegally entering his house without first knocking and 

requesting admission, by arresting him without probable cause, 

and by using excessive force to effect his arrest. At the close 

of the evidence, the district court awarded judgment as a matter 

of law in favor of Bodine on the issue of liability with respect 

to the illegal entry claim. The court later instructed the jury 

that it need not determine whether the troopers used excessive 

force in arresting Bodine because their unlawful entry rendered 

any use of force unreasonable. The jury then returned a verdict 

in favor of the troopers on the unlawful arrest claim and, on the 

remaining claims, awarded Bodine compensatory damages of $25,000, 

an amount that was far below what he had sought. Bodine 

appealed, arguing that the small award of damages was against the 

weight of the evidence. The troopers cross-appealed, contending, 

among other things, that the district court erred in granting 

judgment as a matter of law in favor of Bodine on the illegal 

entry claim and in framing its instructions regarding their 
3 

liability for damages stemming from their conduct. We hold that 

judgment as a matter of law was improper in this case and that 

the court's analysis of the issue of damages was incorrect. We 

therefore reverse and remand for further proceedings. 

 I. 

 This case resulted from events that occurred in 

December 1990. Bodine had custody of his three sons, but their 

mother, Helen Knight, had visitation rights every other Saturday. 

On December 21, Bodine failed to appear at a hearing in Delaware 

Family Court to show cause why he should not be held in contempt 

for violating a prior court order regarding visitation. Bodine 

telephoned the court and said that "although he received notice 

of the hearing . . . he had no intention of appearing . . . or 

bringing the children with him. . . . " The court issued an 

order holding Bodine in contempt and fining him $100. To make up 

for visits that Knight had lost as a result of Bodine's conduct, 

the court ordered that the children be turned over to her for 

visitation at 8 a.m. at the Smyrna, Delaware, police station on 

the next three Saturdays. The order further provided: 

 Any police agency is authorized to 

assist Ms. Knight in securing Mr. Bodine's 

compliance with this order upon being 

presented with a certified copy thereof. 

Should police assistance again become 

necessary to secure the Court ordered 

visitation, Ms. Knight is specifically 

authorized to enter upon the property of Mr. 

Bodine in the company of a police officer to 

receive her children. 

Id. at B-12. 
4 

 On the next Saturday, December 29, Bodine did not bring 

the children to the Smyrna police station at 8 a.m., as required 

by the order, and Knight sought the assistance of the Delaware 

State Police. At some time between 8:10 a.m. and 8:20 a.m., 

Knight and three state troopers, James Warwick, Richard Frunzi, 

and Philip Pitt, arrived at Bodine's house. Bodine observed the 

police cars approach the house. He testified that he thought 

they were there to enforce the visitation order, but he said that 

he was surprised that they had come because he and Knight had 

customarily given each other "a half-hour leeway" in turning over 

the children. 

 Trooper Warwick approached the house. Warwick 

testified that the Family Court order had previously been 

circulated to the members of his troop, that "Harry Bodine and 

the whole custody dispute" was a matter of "officer safety 

concern" for "the entire troop," and that a memorandum concerning 

the matter had been distributed to the troopers. He also stated 

that he was "cautious" as a result of two prior visits to the 

Bodine residence, one for the purpose of executing a warrant for 

Bodine's arrest and the other in connection with the custody 

dispute. On one of those occasions, Warwick said, Bodine had 

told him "something to the effect that" if the police ever tried 

to arrest him, "it [was] not going to happen" and he was "not 

going to let [them] arrest [him]." According to Warwick, Bodine 

also said that if the police came to his house, they were "going 

to pay." As a result of these experiences, Warwick said that he 

regarded Bodine as "unstable" and "very violent." 
5 

 The troopers walked to the front door and knocked, but 

Bodine told him to go to the back because a Christmas tree was 

blocking the front door. They then walked to the back door and 

knocked again. After Bodine opened the door, he and Warwick 

spoke. What happened from this point on was the subject of sharp 

dispute. According to Warwick, the following occurred. Warwick 

asked Bodine why the children had not been brought to the police 

station by 8 a.m. as required by the court order, and Bodine 

responded that he had until 8:30 a.m. Bodine was raising his 

voice, his eyes were twitching, and his lips were trembling. 

These signs caused Warwick concern. Warwick told Bodine to have 

the children ready in five minutes, and Bodine said, "I will have 

them ready when I feel like it." Warwick was leaning forward at 

the doorway, and he wanted to continue to talk to Bodine to calm 

the situation, but Bodine slammed the door and tried to hit 

Warwick in the face with it. Warwick jumped back and heard 

Bodine "fiddling around with the door" on the inside. It sounded 

to Warwick as if Bodine was trying to lock the door, so Warwick 

grabbed the doorknob, pushed the door open, and entered the 

house, followed by Troopers Pitt and Frunzi. 

 Warwick advised Bodine that he was under arrest and 

attempted to grab Bodine's right arm, but Bodine pulled away. 

Warwick then grabbed Bodine's right arm and tried to handcuff 

him, but Bodine pulled away again, and they wrestled to the 

floor. Pitt then grabbed Bodine's right arm and put his knee and 

shin against Bodine's back in order to restrict his movements and 
6 

handcuff him. The troopers handcuffed Bodine, assisted him to 

his feet, and removed him from the house. 

 Bodine, the woman with whom he was then living, and the 

children who testified for him gave a very different account of 

these events. According to Bodine, when he opened the back door, 

he immediately told Warwick that the children would be ready in 

five minutes, and Warwick responded, "Okay, you have five 

minutes." After closing the door "firmly" because it was old and 

swollen, Bodine walked away, but Warwick forcibly opened the 

door, hitting Bodine in the back and knocking him off balance. 

Warwick immediately grabbed Bodine's arms from behind and threw 

him around the kitchen--from the table to the counter to the 

floor--while Bodine offered no resistance. Bodine began to 

scream with pain, and he felt as if his arms were being broken. 

 When Bodine was thrown to the floor, Pitt came down on 

Bodine's back with his knee. While Warwick held Bodine's arms, 

Pitt placed his knee against the upper portion of Bodine's back 

and pressed Bodine's head to the floor. At this point, Bodine 

heard his neck crack. Bodine was then raised by the troopers, 

handcuffed, and escorted to the police station. He was 

subsequently convicted in state court for the crimes of menacing 

and resisting arrest. 

 After his arrest, Bodine was diagnosed as having 

serious back injuries, and he eventually underwent three 

operations. Bodine testified that he suffered great pain, and 

the evidence showed that he was completely unable to work for 

some time. In addition, he introduced expert testimony that his 
7 

injuries would permanently restrict the type of work that he was 

able to do and the number of years that he would be able to work. 

According to an economist who testified for Bodine, his total 

lost wages during his lifetime were between $576,000 and 

$1,000,000. There was also evidence, however, that Bodine had 

back problems before his arrest; that he did not report hearing 

his neck "crack" during some of his initial medical examinations 

after his arrest; and that his injuries were exacerbated by his 

failure to follow the regimen that his physician prescribed. 

 In December 1992, Bodine filed this action in district 

court against Troopers Warwick, Pitt, and Frunzi, as well as 

several other defendants who are no longer in the case. In 

February 1994, the case proceeded to trial on three theories of 

liability: illegal entry, unlawful arrest, and excessive use of 

force. At the end of the testimony, Bodine moved for judgment as 

a matter of law on liability with respect to two of these 

theories, illegal entry and excessive force. The court granted 

this motion with respect to the illegal entry claim. Moreover, 

the court reasoned that, once the troopers entered the house 

illegally, "any harm or damage that they inflict[ed] on the 

plaintiff as a result of the illegal entry [was] per se 

unreasonable . . . and [Bodine] was entitled to damages for 

that." 3/8/94 Tr. at E-31. The court added that it was 

therefore unnecessary to submit the issue of excessive force to 

the jury because the troopers were liable for all of the damages 

that they caused even if they did not use excessive force. Id. 
8 

The court also held that the troopers had waived the defense of 

qualified immunity by not asserting it in their answer or at the 

pretrial conference. Id. at E-37. 

 Before the case was submitted to the jury, Bodine 

dismissed all claims against Trooper Frunzi for compensatory 

damages, and the court awarded nominal damages of $1.00 against 

all of the troopers on the illegal entry claim. In instructing 

the jury, the court said that the plaintiff had to prove that the 

defendants' "conduct" was the proximate cause of the injuries he 

sustained. Id. at E-63. The court stated that it had already 

determined that the troopers had entered the house illegally and 

that the jury would therefore not be requested to decide that 

question. Id. at E-68. The court likewise told the jury that it 

was not required to determine whether the troopers had used 

excessive force once inside the house because it had "determined 

as a matter of law that once the officers entered the premises, 

no amount of force would have been reasonable." Id. at E-70. 

 After receiving these instructions and deliberating, 

the jury found that the troopers had not arrested Bodine 

unlawfully, that their actions were the proximate cause of injury 

to him, and that he was entitled to compensatory damages of 

$25,000. Bodine moved for a new trial on the issue of damages, 

but the court denied that motion. Bodine then appealed, and the 

troopers cross-appealed. 

II. 

 We will first discuss the issue of liability with 

respect to Bodine's illegal entry claim. As noted, the district 
9 

court granted judgment as a matter of law in favor of Bodine on 

this issue. In order for us to sustain this ruling, the 

evidence, viewed in the light most favorable to the non-moving 

parties, must have been insufficient to permit a reasonable jury 

to find in their favor. See, e.g., Wittekamp v. Gulf & Western, 

Inc., 991 F.2d 1137, 1141 & n.7 (3rd Cir.), cert. denied, 114 S. 

Ct. 309 (1993); Billet v. CIGNA Corp., 940 F.2d 812, 815 (3rd 

Cir. 1991). Under this standard, we hold that judgment as a 

matter of law in favor of Bodine was improper. In addition, 

contrary to the troopers' argument, we hold that judgment as a 

matter of law in their favor on this claim was likewise 

unwarranted. As we previously observed, there was sharply 

conflicting evidence regarding the critical events in this case. 

Depending on which version of the facts it believed, a reasonable 

jury could have found for either side on the illegal entry claim. 

Accordingly, that claim should have been sent to the jury. 

 In considering the legality of the troopers' entry into 

the Bodine residence, we begin with the terms of the order of the 

Delaware Family Court, which is important both with respect to 

what it does and does not authorize. We read the order as giving 

the troopers the authority to effect an involuntary transfer of 

the children from Bodine to Knight for the purpose of 

implementing Knight's visitation rights and to enter on Bodine's 

property for this purpose, but we do not read the order as giving 

the troopers the authority to enter the Bodine residence 
10 

unannounced.0 In other words, we view the order as giving the 

troopers authority similar for present purposes to that conveyed 

by an ordinary search or arrest warrant. Such a warrant would 

authorize an executing officer to enter the property where the 

search or seizure was to occur but would not confer "no knock" 

authority unless the warrant so indicated. An ordinary warrant 

is not construed as conferring such authority, and we do not so 

construe the court order involved here. We simply do not see 

anything in the order that supports that construction. Moreover, 

the troopers have not brought to our attention any authority for 

the proposition that the family court judge had the authority 

under state law to issue a "no knock" order, and even if he had 

such authority, it is not apparent that he had a factual basis 

for authorizing an unannounced entry at the time when the order 

was issued. 

 Since the family court order conferred authority 

similar to that of an ordinary search or arrest warrant, the 

troopers' authority to enter the Bodine residence in carrying out 

the mandate of that order was similar to that of an officer 

executing an ordinary warrant. Last term, in Wilson v. Arkansas, 

115 S. Ct. 1914 (1995), the Supreme Court addressed the question 

whether there are circumstances in which the Fourth Amendment 

 

0

If we were called upon to decide whether the troopers have 

qualified immunity for the entry, we would ask whether a 

reasonable officer could have interpreted the order as granting 

the authority to enter unannounced. But since the district court 

held that the troopers had waived this defense and they have not 

challenged that ruling on appeal, we do not address the issue of 

qualified immunity. 
11 

requires that officers knock and announce their presence before 

entering a dwelling for the purpose of making an otherwise lawful 

seizure or search. After tracing the acceptance of the knockand-announce rule by common law courts, the Court held that 

"[g]iven the longstanding common-law endorsement of the practice 

of announcement, we have little doubt that the Framers of the 

Fourth Amendment thought that the method of an officer's entry 

into a dwelling [is] among the factors to be considered in 

assessing the reasonableness of a search or seizure." Id. at 

1918. However, the Court added: 

This is not to say, of course, that every 

entry must be preceded by an announcement. 

The Fourth Amendment's flexible requirement 

of reasonableness should not be read to 

mandate a rigid rule of announcement that 

ignores countervailing law enforcement 

interests. 

Id. The Court noted some of the circumstances under which the 

common law did not require officers to knock and announce, and 

among these were "circumstances presenting a threat of physical 

violence." Id. at 1918-19. 

 The Supreme Court's decision in Wilson was anticipated 

in large part by our decision in United States v. Nolan, 718 F.2d 

589 (3rd Cir. 1983). In that case, we held that there are 

circumstances in which the Fourth Amendment requires officers to 

knock and announce. Id. at 600-02. "We suggested that the 

Fourth Amendment does not impose a specific rule governing forced 

entries but rather imposes a general requirement of 

reasonableness, informed by the goals of preventing undue 
12 

invasion of privacy and destruction of private property." United 

States v. Stiver, 9 F.3d 298, 302 (3rd Cir. 1993), cert. denied, 

114 S. Ct. 1115 (1994). Moreover, in United States v. Kane, 637 

F.2d 974, 978 (3rd Cir. 1981), in discussing the similar but not 

necessarily identical knock-and-announce rule0 codified in 18 

U.S.C. §31090, we held that "a police officer's reasonable belief 

that announcement might place him or his associates in physical 

peril constitutes [an] 'exigent circumstance' . . . that 

justifies non-compliance with the announcement provisions of the 

statute." See also United States v. Jewell, 60 F.3d 20, 23 (1st 

Cir. 1995); United States v. Maxwell, 25 F.3d 1389, 1395 (8th 

Cir.), cert. denied, 115 S. Ct. 610 (1994); United States v. 

Buckley, 4 F.3d 552, 558 (7th Cir. 1993), cert. denied, sub nom. 

Herman v. United States, 114 S. Ct. 1084 (1994). In light of 

these authorities, it seems clear that if the troopers in this 

case had a reasonable belief that they were facing a "threat of 

physical violence" when Bodine closed the door after speaking 

with Warwick, the Fourth Amendment did not require them to knock 

and announce their presence before entering the house. 

 A reasonable jury, viewing the evidence in the light 

most favorable to the troopers, could have found the following. 

Warwick, the officer who opened the door and entered first, knew 

that domestic relations cases are dangerous, that Bodine had 

previously resisted allowing visitation by Knight to the point of 

 

0

See Stiver, 9 F.3d at 301-02; Nolan, 718 F.2d at 600. 

0

As we noted in Stiver, 9 F.2d at 301-02, this statute applies to 

federal officers. It is thus inapplicable here. 
13 

standing in contempt, that Bodine had again failed to comply with 

a court order for visitation that morning, that the visitation 

dispute regarding Bodine's children was a matter of "officer 

safety concern" for his entire troop, and that Bodine had 

previously threatened that if the police came to his house again 

they would have to "pay" and that he would not let them arrest 

him. When Bodine answered the back door, he was surly and 

uncooperative. In response to Warwick's demand that the children 

be ready in five minutes, Bodine said that he would have them 

ready "when he felt like it." Bodine gave "nonverbal signs" of 

considerable emotion: he raised his voice; his eyes twitched; and 

his lips trembled. He slammed the door and attempted to hit 

Warwick with it in the face. And after Bodine did this, Warwick 

heard sounds that led him to suspect that Bodine was trying to 

lock the door. Based on these facts, a reasonable jury could 

conclude that the officers were justified in believing that 

Bodine was planning to use physical violence so as to avoid 

complying with the visitation requirement. 

 The troopers would have a stronger case if there was 

evidence in the record that Bodine had access to firearms or 

other lethal weapons in the house, but the absence of such 

evidence is a matter for the trier of fact to weigh. The parties 

have not brought to our attention any evidence that the troopers 

had a basis for being certain that there were no such weapons in 

the house, and the average house contains implements, such as 

knives and tools, that can be wielded with dangerous effect. 

Thus, the evidence, if viewed in a light favorable to the 
14 

troopers, was adequate to support a verdict in their favor on the 

illegal entry claim. 

 By contrast, if the jury believed Bodine's very 

different version of the events, the troopers lacked any 

reasonable basis for fearing physical violence from Bodine. Under 

this version of the events, Bodine did not turn over the children 

at 8 a.m. due to misunderstanding, offered to have them ready in 

five minutes, and did not slam the door in Warwick's face, but 

merely shut it "firmly" because it was swollen and difficult to 

close. Consequently, we hold that the issue of liability on the 

illegal entry claim should have been submitted to the jury. 

 In arguing that the district court erred in granting 

judgment as a matter of law for Bodine, the troopers rely, not 

only on the danger that they allegedly faced, but also on what 

they characterize as several other "exceptions" to the knock-andannounce rule: the "useless gesture,"0

 fear-of-flight,0 and "hot 

pursuit"0 exceptions. In view of the possibility that Bodine's 

illegal entry claim will be retried on remand, these arguments 

warrant comment. Under Wilson and Nolan, it does not appear to 

be strictly correct to view the Fourth Amendment as containing a 

knock-and-announce rule with certain fixed "exceptions." Instead, 

those cases interpret the Fourth Amendment as containing a 

flexible requirement that all searches and seizures be 

 

0

Citing Ker v. California, 374 U.S. 23, 47 (1963)(Brennan, J., 

dissenting in part); Kane, 637 F.2d at 978; United States v. 

Singleton, 439 F.2d 381, 385-86 (3rd Cir. 1971). 

0

Citing Ker, 374 U.S. at 74 (Brennan, J., dissenting); Kane, 637 

F.2d at 978. 

0

Citing Santana v. United States, 427 U.S. 38 (1976). 
15 

"reasonable" and regard an officer's failure to announce his or 

her presence before entering a dwelling to carry out an otherwise 

lawful search or seizure as a factor to consider in assessing 

reasonableness. See Wilson, 115 S. Ct. at 1918; Nolan, 718 F.2d 

at 600-02. 

 With this understanding in mind, we think that the 

facts on which the troopers rely in advancing their "useless 

gesture" argument -- Bodine's knowledge that the troopers had 

already knocked twice and were outside his house -- are relevant 

but not dispositive in determining whether their entry was 

lawful. Because Bodine had seen the troopers and knew that they 

were outside, some of the dangers often associated with 

unannounced, forcible entries -- for example, the danger that the 

troopers would be mistaken for burglars0 -- were diminished. On 

the other hand, other dangers that might have been avoided by 

knocking and announcing -- such as the danger that property would 

be destroyed and that an occupant of the house would reflexively 

react with violence0 -- were present. 

 By contrast, the possibility that Bodine might have 

fled finds no support in the evidence and is therefore not a 

relevant factor to consider in judging the reasonableness of the 

troopers' conduct. Indeed, the troopers themselves testified 

that they did not think that Bodine was going to flee. 

 

0

See Sabbath v. United States, 391 U.S. 585, 589 (1968); Kane, 

637 F.2d at 977. 

0

See Nolan, 718 F.2d at 602. 
16 

 In invoking the "hot pursuit" exception, the troopers 

rely on United States v. Santana, 427 U.S. 38 (1976). They note 

that Bodine committed the offense of menacing when he slammed the 

door and tried to hit Warwick, and they argue that Warwick was in 

"hot pursuit" of Bodine to arrest him for this offense when he 

entered the house. Although Santana concerned a somewhat 

different question from the one presented by this case, we think 

that it has some (limited) relevance here. Unlike Wilson, 

Santana did not involve the authority of officers with a warrant 

to enter a dwelling unannounced to execute the warrant. Instead, 

Santana involved the authority of officers to enter a dwelling to 

make a warrantless arrest. As the Supreme Court later held in 

Payton v. New York, 445 U.S. 573 (1980), the Fourth Amendment 

prohibits the police from making a warrantless and nonconsensual 

entry into a suspect's house in order to make a routine felony 

arrest, but officers may make a warrantless arrest in a public 

place. See United States v. Watson, 423 U.S. 411 (1976). In 

Santana, the police tried to make a warrantless drug arrest 

supported by probable cause in a public place, but the suspect 

retreated into her house, and the police pursued and arrested 

her. Concluding that this did not violate the Fourth Amendment, 

the Supreme Court held that when officers attempt to make a 

warrantless arrest in a public place but the suspect flees into a 

dwelling the officers do not need a warrant to pursue the suspect 

and carry out the arrest. The Court noted the need for prompt 

action to prevent the destruction of evidence (id. at 43), and 

although the Court did not expressly refer to the authority of 
17 

the police to enter the house without announcement, that 

authority was certainly implicit in the court's holding. 

 Although, as we noted, Santana concerned a somewhat 

different question from that presented here, we have no doubt 

that, when the police attempt to make an arrest with a warrant in 

a public place and the suspect flees into his or her home and 

closes the door, it is reasonable for the police to pursue the 

suspect inside without stopping and announcing their presence and 

intentions at the threshold. This is so for several reasons. 

Since the suspect knows what the police are attempting to do, 

little purpose would be served by knocking and announcing. In 

addition, in many cases, as in Santana, there will be a danger 

that evidence will be destroyed if there is delay, and there will 

sometimes be a danger of flight or a threat of harm to the 

officers as well. 

 In this case, as previously noted, the troopers' fear 

for their safety is potentially an important factor, but the risk 

of flight is not supported by the evidence. Nor is there any 

suggestion that delay might have allowed Bodine to destroy 

evidence. As for the argument that an announcement was 

unnecessary because Bodine must have known that Warwick was 

trying to arrest him for menacing, while we cannot say that the 

troopers should not be permitted to argue this theory to the jury 

at a retrial if they wish to do so, it appears to have scant 
18 

support in the record.0 Warwick did not try to arrest Bodine 

before he slammed the door and retreated inside (if Bodine can be 

said to have done so); indeed, it was not until Bodine slammed 

the door and thus menaced Warwick that Warwick had grounds to 

arrest him. Thus, it is not at all clear that Bodine knew, prior 

to Warwick's entry, that Warwick was seeking to arrest him for 

menacing. 

 In sum, we hold that the record in this case did not 

support judgment as a matter of law for either side on the 

illegal entry claim. Only after the jury has resolved the 

disputed factual issues regarding the relevant factors that we 

have noted can it be determined whether the troopers' unannounced 

entry was reasonable. 

 III. 

 We now turn to Bodine's excessive force claim. If this 

claim is viewed separately from the illegal entry claim, it seems 

clear that the jury should have been permitted to decide whether 

the troopers' use of force was excessive. Under the troopers' 

version of the events, it was not. According to the troopers, 

they were simply trying to handcuff and arrest Bodine, but he 

struggled to resist arrest. By contrast, under Bodine's version, 

the troopers' conduct -- throwing him around the kitchen and 

 

0

Judge Becker finds no support in the record for this theory and 

no basis for concluding that Bodine knew prior to the officers' 

entry that they were seeking to arrest him. 
19 

causing his neck to "crack" while he offered no resistance--was 

plainly excessive. 

 The district court, however, did not allow the jury to 

decide which account should be believed, Instead, the court told 

the jury that it did not need to decide this question because, 

since the officers had entered the house illegally, any use of 

force was unlawful, and the officers were liable for all of the 

harm that ensued. This analysis was wrong for two independent 

reasons. 

 First, as we explained in part II of this opinion, the 

record did not permit judgment as a matter of law on the illegal 

entry claim, and accordingly the court's conclusion that the 

entry was illegal was premature. Second, even if the entry was 

unlawful, this would mean, under basic principles of tort law, 

that the troopers would be liable for the harm "proximately" or 

"legally" caused by their tortious conduct (i.e., by their 

illegal entry). See, e.g., Restatement (Second) of Torts §§ 431 

and 871 cmt. l (1965 & 1979). They would not, however, 

necessarily be liable for all of the harm caused in the 

"philosophic" or but-for sense by the illegal entry. See, e.g., 

Restatement (Second) of Torts §§ 431 and cmt. a (1965). Among 

other things, they would not be liable for harm produced by a 

"superseding cause." See, e.g., Restatement (Second) of Torts

§§440-453 (1965). And they certainly would not be liable for 

harm that was caused by their non-tortious, as opposed to their 
20 

tortious, "conduct," such as the use of reasonable force to 

arrest Bodine.0

 A simple hypothetical will illustrate the importance of 

these distinctions in a case such as this. Suppose that three 

police officers go to a suspect's house to execute an arrest 

warrant and that they improperly enter without knocking and 

announcing their presence. Once inside, they encounter the 

suspect, identify themselves, show him the warrant, and tell him 

that they are placing him under arrest. The suspect, however, 

breaks away, shoots and kills two of the officers, and is 

preparing to shoot the third officer when that officer disarms 

the suspect and in the process injures him. Is the third officer 

necessarily liable for the harm caused to the suspect on the 

theory that the illegal entry without knocking and announcing 

rendered any subsequent use of force unlawful? The obvious 

answer is "no." See George v. City of Long Branch, 973 F.2d 706 

(9th Cir. 1992), cert. denied, 113 S. Ct. 1269 (1993). The 

suspect's conduct would constitute a "superseding" cause, see

Restatement (Second) of Torts § 442 (1965), that would limit the 

officer's liability. See id. § 440. 

 

0

In reaching the conclusion that the officers' illegal entry 

rendered any later use of force unreasonable, the district court 

relied on Schwab v. Wood, 767 F. Supp. 574, 585 (D. Del. 1991), 

which held that officers who detain a suspect without a 

reasonable suspicion are liable (unless shielded by qualified 

immunity) for harm caused by the use of any amount of force in 

effectuating that detention. We find this holding questionable 

for reasons similar to those discussed in text. Officers who 

detain a suspect unlawfully should be liable for the harm 

proximately caused by their tortious detention, but this will not 

necessarily include all harm resulting from the otherwise 

reasonable use of force to carry out the detention. 
21 

 If at a retrial in this case the jury decides that the 

troopers' entry was unlawful, it will be necessary to determine 

how much of the injury suffered by Bodine was "proximately" or 

"legally" caused by the illegal entry, and we express no view on 

this question at this time. We merely emphasize that this 

determination must be made and that the illegal entry and 

unlawful force claims must be kept separate. Thus, if the 

troopers are found to have entered the Bodine residence 

illegally, they should be held liable for the harm proximately 

caused by the illegal entry. Similarly, if the troopers are 

found to have used unlawful force, they should be held liable for 

the harm proximately caused by this use of force. The harm 

proximately caused by these two torts may overlap, but the two 

claims should not be conflated. 
22 

 IV. 

 For these reasons, the judgment of the district court 

is reversed, and the case is remanded for further proceedings. 

Each party is to bear his own costs.