Opinions of the United
1998 Decisions                                                                                                             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Precedential or Non-Precedential: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


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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 court-
ordered 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.

                                

. 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, 

, 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; 

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."

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, 

, 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,

, 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, 

, 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, 

,
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 

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, 

, 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." 

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, 

, 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."

. "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." 

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 

. After the suspects
complied with the officers' instruction to exit the house
backwards, they were ordered to lie face-down in the dirt.

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. 

& 821. While we acknowledged that the officers' alleged
conduct "appear[ed] extreme," 

we concluded that
it did not violate the Fourth Amendment. 

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 

-- 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." 

.

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, 

(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." 

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, 

, 515
(1995); Davis v. Scherer, 

, 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., 

, 627-28 (1991), quoting United States v.
Mendenhall, 

, 554 (1986) (opinion of Stewart,
J.). See also Michigan v. Chesternut, 

, 573
(1988); INS v. Delgado, 

, 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, 

(3d
Cir. 1995) -- relied upon by the district court but not
mentioned in the majority's opinion -- and Sharrar v.
Felsing, 

(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 

. 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.

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 Rambo-
type behavior under the circumstances came "close to the
line," although not constituting a Fourth Amendment

.

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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