Pamela A. Couden v. Scott Duffy

1
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1732
PAMELA A. COUDEN; TIFFANY A. COUDEN; ADAM R.
COUDEN, a minor, by his next friend, Pamela A. Couden;
NICHOLAS M. COUDEN, a minor, by his next friend, Pamela
A. Couden; JORDAN T. COUDEN, a minor, by his next friend,
Pamela A. Couden; LUKE J. COUDEN, a minor, by his next
friend, Pamela A. Couden; and MICAH J. COUDEN, a minor,
by his next friend, Pamela A. Couden,
Appellants,
v.
SCOTT DUFFY; JAMES C. ARMSTRONG; JAY FREEBERY;
LIAM SULLIVAN; TWO UNKNOWN NAMED AGENTS OF
THE FEDERAL BUREAU OF INVESTIGATION; NEW
CASTLE COUNTY; THE NEW CASTLE COUNTY
DEPARTMENT OF POLICE; CITY OF WILMINGTON;
CITY OF WILMINGTON POLICE DEPARTMENT;
*UNITED STATES OF AMERICA,
(*Amended Per Clerk’s Order of 4/7/04)
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 03-cv-369)

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District Court Judge: Honorable Kent A. Jordan
Argued September 29, 2005
Before: RENDELL, FUENTES, and WEIS, Circuit Judges.
(Filed May 1, 2006)
William D. Fletcher, Jr.
Noel E. Primos (ARGUED)
Schmittinger & Rodriguez, P.A.
414 South State Street
P.O. Box 497
Dover, DE 19903
ATTORNEYS FOR APPELLANTS
Judith A. Hildick
Michele D. Allen (ARGUED)
New Castle County Law Department
87 Reads Way
New Castle, DE 19720
ATTORNEYS FOR APPELLEES JAY FREEBERY, JAMES
ARMSTRONG, NEW CASTLE COUNTY, AND NEW
CASTLE COUNTY DEPARTMENT OF POLICE
Colm F. Connolly
United States Attorney
Rudolph Contreras (ARGUED)
Assistant United States Attorney
Office of the United States Attorney
1007 Orange Street, Suite 700
Wilmington, DE 19899
ATTORNEYS FOR APPELLEES SCOTT DUFFY AND THE
UNITED STATES OF AMERICA

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Many of the relevant facts in this case are in dispute.1
Because this case is at the summary judgment stage, we view the
facts in the light most favorable to the plaintiffs. See Anderson v.
Consol. Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002).
3
Rosamaria Tassone (ARGUED)
City of Wilmington Law Department
800 North French Street
9th Floor
Wilmington, DE 19801
ATTORNEY FOR APPELLEES LIAM SULLIVAN, CITY OF
WILMINGTON, AND WILMINGTON DEPARTMENT OF
POLICE
OPINION OF THE COURT
FUENTES, Circuit Judge.
In the hopes of catching a fugitive wanted for drug and
weapons offenses, federal and local law enforcement officers set
up undercover surveillance outside a home in Newark,
Delaware. During the surveillance, plaintiff-appellant Pamela
Couden, who lived near the target house, pulled up in front of
her home with five of her children in her car. Couden’s 14 year-
old son got out of the car to leave his skateboard in the garage
and to summon his sister from the house. Before realizing they
had the wrong person, the officers approached the Couden car
with guns drawn, then entered the Couden home where they
tackled and handcuffed Couden’s son. The Coudens filed suit1
against the officers and various government entities, claiming
constitutional and state common law violations. Concluding that
the officers’ conduct was reasonable, the District Court granted
summary judgment in favor of all defendants. We conclude that

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the District Court erred in failing to consider the facts in the light
most favorable to plaintiffs. We reverse in part, affirm in part,
and remand for further proceedings.
BACKGROUND
The relevant facts are as follows. On April 12, 2001,
members of the Delaware Joint Violent Crime Fugitive Task
Force set up surveillance near 7 Sanford Drive in Newark,
Delaware, based on a tip that a fugitive wanted by the New
Castle County Police Department for drug and weapons-related
charges might be staying at that address. The Task Force was
made up of both state and federal officers, and the members at
the scene were defendant-appellees Scott Duffy of the Federal
Bureau of Investigation (FBI), James Armstrong and Jay
Freebery of the New Castle County Police Department, and
Liam Sullivan of the Wilmington Police Department. The
members of the Task Force were parked in two unmarked
vehicles and wore plain clothes.
At about 8:30 p.m., Pamela Couden drove up to her home
at 3 Sanford Drive, two houses away from 7 Sanford Drive, with
five of her children – plaintiff-appellants Micah, age 5, Luke, 7,
Jordan, 9, Nicholas, 11, and Adam, 14. Couden’s daughter, 17
year-old Tiffany, was inside the residence. Couden parked on the
street and kept her lights on and the engine running while Adam
exited the car. According to Couden, she was waiting for Adam
to put his skateboard in the garage and summon his sister, and
the family then planned to go out to dinner. Adam walked into
the garage, where he put down his skateboard and looked
through a window from the garage into the house. He saw
Tiffany through the window and started to leave the garage. At
that time, he saw a man charging towards him with a gun.
Frightened, he slammed the garage door shut, remaining inside.
Meanwhile, Pamela Couden pulled her car into the
driveway, put her high beams on, and blew the horn to summon
Adam. She then saw an unknown man – later determined to be
Officer Armstrong – walking towards her with a gun. When he
reached the car he pointed the gun at Pamela Couden and pulled

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Plaintiffs suggest that the four men who jumped on Adam2
were Officers Armstrong, Freebery, and Sullivan, and Agent
Duffy. Agent Duffy states, however, that he and Officer Sullivan
did not arrive until after Adam Couden was handcuffed. Based on
5
the door handle without displaying a badge or identifying
himself in any way. Not realizing that the man was an officer,
Couden tried to escape. She pressed the gas pedal, swerved to
avoid the garage, and swerved again to avoid a tree. She then
saw a second man – later determined to be Officer Freebery –
running towards the car pointing a gun at her and holding a
flashlight above his head. As Couden drove past Officer
Freebery, he threw the flashlight at a window of the car,
shattering the glass. The children screamed from the back seat of
the car, and Couden believed that one of them had been shot.
Couden continued driving to a neighbor’s house and drove over
the curb, breaking the car’s steering column. She ran into the
neighbor’s house and called 9-1-1.
From where he was standing inside the garage, Adam
Couden heard his mother and brothers screaming “he’s got a
gun!” and then saw the family car drive across the yard with tires
screeching. He then heard the sound of glass shattering.
Tiffany testified that, from inside the house, she saw a
man with a gun approach the sliding-glass rear door to the house.
The man tried to open the door, and when he saw Tiffany, he
showed her what she thought was a badge and demanded entry.
Tiffany testified that the man entered the house, but she did not
specify whether she let him in or whether he forced his way in.
A second man followed the first man into the house, and told
Tiffany that there was a robber in the house. One of the men
proceeded down the hallway, yelling “Come out with your hands
up!” A third man then entered and headed toward the garage,
and Tiffany heard someone yell “we got him” from the area of
the garage and kitchen. Two of the men brought Adam into the
house from the garage and threw him on the floor, where four
men participated in pushing his head down, pointing guns at
him, and spraying him with mace. They then handcuffed him.2

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the testimony of Tiffany Couden that four men tackled Adam
Couden, together with defendants’ assertion that no one besides
Armstrong, Freebery, Duffy, and Sullivan was involved in the
events of that night, this Court will presume for purposes of
summary judgment that Agent Duffy and Officer Sullivan did
participate in the capture of Adam Couden.
6
Tiffany told the men that Adam was her brother, and they
demanded a driver’s license from Adam. Adam said that he was
too young to have a driver’s license. The men then left the
house. About twenty minutes later, they returned and removed
Adam’s handcuffs.
Later that evening, Officers Armstrong and Freebery
spoke to Pamela Couden and explained that a surveillance team
was working undercover in the neighborhood, and that they had
mistakenly assumed that Adam was the fugitive whom they were
seeking. Officer Armstrong also admitted to Couden that he had
seen the children in the back seat when he approached her
vehicle.
Couden and the six children filed suit against the officers,
the City of Wilmington, the Wilmington Police Department,
New Castle County, and the New Castle County Police
Department in the United States District Court for the District of
Delaware in April 2003. They claimed violations of their rights
under the Fourth and Fifth Amendments to the United States
Constitution, and they proffered state common law claims of
intentional and negligent infliction of emotional distress, assault
and battery, false imprisonment, trespass, and wanton
negligence. The complaint was originally filed against Agent
Duffy and “unknown named agents of the FBI,” but after
defense counsel provided plaintiffs with the names of the local
officers involved in the relevant events, plaintiffs filed an
amended complaint naming as defendants James Armstrong, Jay
Freebery, Liam Sullivan, the New Castle County Police
Department, New Castle County, the City of Wilmington, and
the City of Wilmington Police Department. After exhausting
their administrative remedies under the Federal Tort Claims Act

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Our review of a grant of summary judgment is plenary, and3
we apply the same standard that the district courts apply at
summary judgment. Dilworth v. Metro. Ins. Co., 418 F.3d 345, 349
(3d Cir. 2005). Thus, we draw all reasonable inferences in favor of
the non-moving party, and affirm a grant of summary judgment
only when “‘there is no genuine issue as to any material fact and
. . . the moving party is entitled to a judgment as a matter of law.’”
Id. (quoting Fed. R. Civ. P. 56(c)). The District Court had
jurisdiction over the federal claims in this case under 28 U.S.C.
§ 1331, and over the related state law claims under 28 U.S.C.
§ 1367(a). We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291.
7
(FTCA) in November 2003, plaintiffs added the United States as
a defendant.
Agent Duffy, Officer Armstrong, Officer Freebery, New
Castle County, and the New Castle County Police Department
filed motions to dismiss under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, or in the alternative for summary
judgment. The United States also filed a motion to dismiss.
Officer Sullivan, the City of Wilmington, and the Wilmington
Police Department did not make any dispositive motions.
Plaintiffs filed a motion under Rule 56(f), requesting an
opportunity to take further discovery. The District Court
considered all dispositive motions filed by defendants as motions
for summary judgment, and granted judgment to all defendants,
including, sua sponte, to Sullivan, the City of Wilmington and
the Wilmington Police Department. Couden v. Duffy, 305 F.
Supp. 2d 379, 385, 392-93 (D. Del. 2004). The Court also denied
plaintiffs’ 56(f) motion. Id. at 393. This appeal followed.3
DISCUSSION
I. Constitutional Claims Against the Individual Defendants
Under 42 U.S.C. §1983, an individual may bring a suit for
damages against any person who, acting under the color of state
law, deprives another individual of any rights, privileges, or

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Agent Duffy argues that the case against him should be4
dismissed because plaintiffs failed to allege that he was personally
involved in any of the relevant events. Plaintiffs alleged in their
complaint that “four of the Defendants entered the home with
firearms” and “[s]ubsequently, the Defendants grabbed Plaintiff
Adam Couden, pulled him into the house and pushed him to the
floor . . . .” As noted above, we presume that Agent Duffy was one
of these four officers. Plaintiffs therefore have alleged sufficient
facts about Agent Duffy’s involvement in the case to survive a
motion to dismiss.
8
immunities secured by the United States Constitution or federal
law. Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d
141, 146 (3d Cir. 2005). A parallel right of action against federal
officials exists under the Supreme Court’s holding in Bivens v.
Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971). See Brown v. Philip Morris Inc.,
250 F.3d 789, 800 (3d Cir. 2001). Here, plaintiffs have brought
suit against Officers Armstrong, Freebery, and Sullivan under §
1983, and against Agent Duffy under Bivens, claiming that
their rights were violated under the Fourth and Fifth
Amendments to the United States Constitution. The District
Court did not consider the Fifth Amendment claim, however,
and plaintiffs do not argue it in their briefs before this Court. We
therefore hold that any Fifth Amendment claim is waived. See
United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is
well settled that an appellant’s failure to identify or argue an
issue in his opening brief constitutes waiver of that issue on
appeal.”). Under the Fourth Amendment, plaintiffs claim that the
four officers (1) unlawfully searched the Couden residence, (2)
unlawfully seized six of the seven plaintiffs (Pamela Couden and
four children in the car, and Adam Couden in the Couden
residence), and (3) used excessive force against Adam Couden.4
Under certain circumstances, government officials are
protected from Bivens and § 1983 suits by qualified immunity.
In the context of Fourth Amendment claims, qualified immunity
operates to “protect officers from the sometimes ‘hazy border
between excessive and acceptable force,’ and to ensure that

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before they are subjected to suit, officers are on notice their
conduct is unlawful.” Saucier v. Katz, 533 U.S. 194, 206 (2001)
(quoting Priester v. Riviera Beach, 208 F.3d 919, 926 (11th Cir.
2000) (internal citation omitted)). In considering whether
qualified immunity applies, a court must first decide whether the
facts, taken in the light most favorable to the plaintiff,
demonstrate a constitutional violation. Curley v. Klem, 298 F.3d
271, 277 (3d Cir. 2002) (citing Saucier, 533 U.S. at 201). If so,
the court next determines whether the constitutional right in
question was clearly established. Id. at 277 (citing Saucier, 533
U.S. at 201). “The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be clear
to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier, 533 U.S. at 202. “If the
officer’s mistake as to what the law requires is reasonable,” the
officer is entitled to qualified immunity. Id. at 205.
A. Analysis by the District Court
The District Court found that the individual defendants
did not violate plaintiffs’ constitutional rights, and it therefore
did not reach the question of whether the rights were clearly
established. See Couden, 305 F. Supp. 2d at 387-90. We
conclude that in its constitutional rights analysis, the District
Court failed to consider the facts in the light most favorable to
the plaintiffs. Initially, the District Court reported defendants’
version of Adam Couden’s behavior:
Defendants claim that . . . a white male, later
identified as Adam Couden . . . , got out of the
vehicle, proceeded to the rear of Plaintiff’s
residence, and looked into several windows in the
rear of the house. Defendants state that Adam
continued to peer into the windows while hiding
behind objects in the back yard, and then attempted
to open the rear sliding glass door, but could not
gain entry. According to Defendants, Adam looked
around to the left and right as if he was making
sure no one could see him, and then quickly
entered another rear door.

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Id. at 382 (citations to the record omitted). The District Court did
not present plaintiffs’ contradictory version of these details, and
went on to explicitly adopt defendants’ recital of the facts in
considering whether a constitutional violation had occurred. The
District Court stated, for example, that “there is no dispute that
Adam . . . looked in the rear windows before entering the
house,” and that based on this fact, among others, Officers
Armstrong and Freebery acted reasonably in approaching the
house to investigate. Id. at 388. In its discussion of plaintiffs’
seizure claim, the District Court similarly noted that
it is undisputed that Officers Armstrong and
Freebery witnessed Adam approach the house
from the rear, and peek into the rear windows of
the house. It is also undisputed that Adam could
not gain entry after opening the rear sliding glass
door, and that he entered another rear door after
looking around to the left and right as if he was
making sure no one could see him.
Id. at 389. The Court concluded that this “suspicious behavior,”
coupled with the officers’ belief that Adam was the fugitive
whom they were seeking, “was sufficient to give the Officers
reasonable suspicion of criminal activity,” and thus to justify the
seizure of Pamela Couden and the children in the car under the
Fourth Amendment. Id.
All of these facts as recited by the District Court are
disputed by plaintiffs. In his affidavit, Adam Couden stated that
he simply walked into the garage, put his skateboard on a bench,
and looked through a window from the garage into the house.
He then began to exit the garage, and saw a man “charging”
towards him with a gun. Adam does not admit to looking
through multiple windows, attempting to gain entry through a
rear glass door of the house, or “looking around to the left and
right as if he was making sure no one could see him.”
In addition, the District Court failed to take into account
several of plaintiffs’ allegations favorable to their claim. Pamela

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Couden stated that when she pulled into her driveway, she put
her car’s high beams on and blew the horn. Plaintiffs reasonably
argue that such behavior is uncharacteristic of a getaway car, but
the District Court did not mention this element of plaintiffs’
account. The Court also failed to note Couden’s allegation that
after the misunderstanding was discovered, Officer Armstrong
admitted to her that he had seen the four children sitting in the
car when he initially approached. While this point is hardly
definitive, it supports plaintiffs’ argument that Officer
Armstrong acted unreasonably when he approached the vehicle
with his weapon raised.
In sum, it is clear that the District Court did not consider
the facts in the light most favorable to the plaintiffs as required
when analyzing a summary judgment record, and that this error
significantly influenced the Court’s findings. We next consider
whether summary judgment is appropriate under a proper view
of the record, examining in turn the seizure of Pamela Couden
and the children in the car, the entry into the Couden residence,
and the seizure of Adam Couden.
B. Seizure of Pamela Couden and the Children in the Car
Considering the facts in the light most favorable to the
plaintiffs, Armstrong’s conduct gave rise to an unconstitutional
seizure under the Fourth Amendment when he approached the
Couden vehicle with gun drawn. The federal defendants suggest
that the plaintiffs in the car were never “seized” for purposes of
the Fourth Amendment because Pamela Couden drove away
when Officer Armstrong approached the car. Generally,
“whenever a police officer accosts an individual and restrains his
freedom to walk away, he has ‘seized’ that person.” Terry v.
Ohio, 392 U.S. 1, 16 (1968). Here, Officer Armstrong clearly
restrained the freedom of Couden and her children when he
approached them, pointed a gun at Couden, and tried to open one
of the doors to the car. However, “if the police make a show of
authority and the suspect does not submit, there is no seizure.”
United States v. Valentine, 232 F.3d 350, 358 (3d. Cir. 2000);
see also id. at 353, 359 (holding that no seizure occurred where
an officer told Valentine to approach and to put his hands on the

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Although an approach with weapons drawn does not5
automatically escalate a Terry stop into an arrest, it may do so in
certain circumstances, depending on “the intrusiveness of all
aspects of the incident in the aggregate.” Baker v. Monroe Twp.,
50 F.3d 1186, 1193 (3d Cir. 1995). We need not decide whether
Officer Armstrong’s seizure of Couden and her children amounted
to an arrest, because we find that the seizure was unconstitutional
even under the lower “reasonable suspicion” standard applicable to
a Terry stop.
12
squad car, and Valentine responded “Who, me?” before
attempting to run away). That reasoning does not apply here,
however, because Couden alleges that Officer Armstrong never
declared himself to be a police officer and never displayed a
badge. There was thus no “show of authority” by Officer
Armstrong, and Couden could not have been expected to
“submit.” Under these circumstances, it would be unreasonable
to find that Couden’s flight negated the seizure. We hold that a
seizure did occur for purposes of the Fourth Amendment.
Generally, a seizure is reasonable only where it is
justified by a warrant or probable cause. Shuman, 422 F.3d at
147. An officer without a warrant or probable cause may,
however, conduct a “Terry stop” – a “brief, investigatory stop
when the officer has a reasonable, articulable suspicion that
criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119,
123 (2000) (citing Terry, 392 U.S. at 30). Under the reasonable
suspicion standard, “the police officer must be able to point to
specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant [the] intrusion.”
Terry, 392 U.S. at 21.5
Defendants argue that Officer Armstrong had a
reasonable suspicion of criminal activity based on Adam
Couden’s strange behavior, and that Officer Armstrong
reasonably believed that the vehicle parked near the house was a
getaway car. In determining whether the reasonable suspicion
standard is satisfied, a court must “consider the totality of the
circumstances, including the police officer’s knowledge,

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Pamela Couden states that the individual defendants told6
her at the end of the evening that they had mistakenly believed
Adam to be the fugitive under surveillance. Defendants insist that
they did not believe that Adam was the fugitive, but instead
thought him to be a common burglar. This Court need not consider
which view presents the case in the light most favorable to the
plaintiffs, as the defendants lacked reasonable suspicion under
either view.
Even if Officer Armstrong harbored some reasonable7
concerns about what he saw, it was unnecessary to approach the car
silently with gun drawn. Instead, he could have presented his badge
to Pamela or Adam Couden and questioned them, or he could have
run the car’s license plate through the police database and found
13
experience, and common sense judgments about human
behavior.” United States v. Robertson, 305 F.3d 164, 167 (3d
Cir. 2002). Since the Couden residence was not the house under
surveillance, the officers had no reason to believe that Adam
Couden was the fugitive they were seeking. Nor was it
reasonable, under the plaintiffs’ description of the facts, for the
officers to assume that Adam was a burglar. Adam stated that6
he was carrying a skateboard and walked directly into the
garage, where he put down the skateboard and looked through a
window into the house. The car contained four small children,
ranging in age from five to eleven years old, who should have
been visible to Officer Armstrong at least by the time he reached
the car and began pulling on the door handle. Pamela Couden
states that when she pulled her car into the driveway, she turned
on her car’s high beams and honked. None of these facts is
suggestive of unlawful conduct. While it is true that a
“reasonable suspicion of criminal activity may be formed by
observing exclusively legal activity,” United States v. Ubiles,
224 F.3d 213, 217 (3d Cir. 2000), the officers here must point to
some specific articulable basis for their suspicion. They have not
done so, and no set of reasonable inferences from the behavior
witnessed by the officers provides such a basis. See Johnson v.
Campbell, 332 F.3d 199, 208 (3d Cir. 2003) (“There are limits . .
. to how far police training and experience can go towards
finding latent criminality in innocent acts.”). Under the facts as7

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that it matched the residence. While the fact that Officer Armstrong
could have used less intrusive measures does not automatically
render the seizure unreasonable, it is a relevant factor in
considering the constitutionality of Officer Armstrong’s conduct.
See Hedges v. Musco, 204 F.3d 109, 120 (3d Cir. 2000).
Officer Armstrong’s conduct may also have constituted an8
unconstitutional seizure under the excessive force doctrine, given
that the occupants of the car showed no potential for dangerous
behavior. See Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3d Cir.
1995) (noting that officers could be liable for excessive force
where they pointed guns at and handcuffed several non-threatening
individuals); Baldwin v. Placer County, 418 F.3d 966, 970 (9th Cir.
2005) (finding excessive force where officer pointed gun at rear of
plaintiffs’ heads with no evidence that plaintiffs might be violent).
We need not decide that issue here.
14
presented by plaintiffs, Officer Armstrong’s seizure of the
plaintiffs in the car was therefore unconstitutional.8
Moreover, the right violated was “clearly established”
under the test articulated by the Supreme Court in Saucier. In
deciding whether a right is clearly established, the inquiry “must
be undertaken in light of the specific context of the case, not as a
broad general proposition.” Saucier, 533 U.S. at 201. A grant of
qualified immunity may be upheld where a challenged police
action presents an unusual legal question or “where there is ‘at
least some significant authority’ that lends support” to the
conduct in question, even if the conduct was unconstitutional.
Doe v. Groody, 361 F.3d 232, 243 (3d Cir. 2004) (citation
omitted). “On the other hand, the plaintiff need not show that
there is a prior decision that is factually identical to the case at
hand in order to establish that a right was clearly established.”
Id.
We hold that it would have been clear to a reasonable
officer that the conduct observed by Officers Armstrong and
Freebery – a young man exiting a car parked near a house,
walking from the car into the garage of the house while carrying
a skateboard and then looking into a window of the house, and

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15
the car then driving into the driveway of the house, turning on its
brights, and honking – do not provide the reasonable suspicion
of illicit activity necessary for a Terry stop. There is simply
nothing suspicious in this series of actions, and plaintiffs have
not pointed to any legal authority that might cloud the issue. Cf.
Johnson, 332 F.3d at 209 (finding no reasonable suspicion to
support a Terry stop where the subject was “drinking coffee,
flipping through a newspaper, pacing, and rubbing his head”).
Although reasonable suspicion cases are inherently fact-based,
we find that based on relevant precedent, the lack of a specific
articulable suspicion should have been apparent to a reasonable
officer in Officer Armstrong’s position. Thus, Officer
Armstrong is not entitled to qualified immunity for his
unconstitutional seizure of Pamela Couden and the children in
the car.
C. Search of the Couden Residence
A search of a home without a warrant is presumptively
unreasonable under the Fourth Amendment. Payton v. New
York, 445 U.S. 573, 586 (1980). There are several established
exceptions to the warrant requirement, however, including
exigent circumstances and consent. Steagald v. United States,
451 U.S. 204, 211 (1981). Regardless of whether an exception
applies, a warrantless search generally must be supported by
probable cause. New Jersey v. T.L.O., 469 U.S. 325, 340 (1985).
Exigent circumstances exist where “officers reasonably
. . . believe that someone is in imminent danger.” Parkhurst v.
Trapp, 77 F.3d 707, 711 (3d Cir. 1996) (emphasis omitted). For
example, a search may be justified based on exigent
circumstances by “hot pursuit of a fleeing felon,” “imminent
destruction of evidence,” or “the need to prevent a suspect’s
escape.” Minnesota v. Olson, 495 U.S. 91, 100 (1990) (quoting
lower court holding with approval). Defendants argue that the
officers in this case reasonably believed that Tiffany Couden
was in imminent danger because they saw an unknown man
enter the house, and they believed him to be either a burglar or a
wanted fugitive. In addition, they state that Tiffany told them
that she was alone in the house, confirming their suspicion that

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Because we find that exigent circumstances justified the9
search, we do not consider whether Tiffany Couden provided valid
consent for a search.
16
the man was an intruder. Lastly, Pamela Couden’s seemingly
desperate drive away from the scene suggested some type of
illicit behavior.
This is a close issue. As discussed previously, Adam
Couden did not initially behave in a suspicious manner, and the
vehicle parked by the road did not behave like a getaway car.
Once the vehicle sped away, however, the officers were
reasonable in their concern and their decision to approach the
house to investigate further. Tiffany’s apparent belief that no one
else was home properly increased their concern. We hold that
these facts, taken together, provided both the probable cause and
exigent circumstances necessary for a warrantless search of the
house.9
D. Excessive Force Against Adam Couden
The use of excessive force is itself an unlawful “seizure”
under the Fourth Amendment. Graham v. Connor, 490 U.S. 386,
395 (1989); Carswell v. Borough of Homestead, 381 F.3d 235,
240 (3d Cir. 2004). In deciding whether challenged conduct
constitutes excessive force, a court must determine the objective
“reasonableness” of the challenged conduct, considering “‘the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officer or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.’” Carswell, 381 F.3d at 240 (quoting Graham,
490 U.S. at 396). Other factors include “the duration of the
[officer’s] action, whether the action takes place in the context
of effecting an arrest, the possibility that the suspect may be
armed, and the number of persons with whom the police officers
must contend at one time.” Sharrar v. Felsing, 128 F.3d 810, 822
(3d Cir. 1997). In evaluating reasonableness, the court must take
into consideration the fact that “police officers are often forced
to make split-second judgments – in circumstances that are

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tense, uncertain, and rapidly evolving – about the amount of
force that is necessary in a particular situation.” Graham, 490
U.S. at 397. Thus, the court should not apply “the 20/20 vision
of hindsight,” but should instead consider the “perspective of a
reasonable officer on the scene.” Id. at 396.
Adam and Tiffany Couden state that four officers jumped
on Adam, pointed guns at his head, handcuffed him, and sprayed
him with mace. One of the officers was on top of Adam with his
knee in Adam’s back. Although the officers may have believed
that Adam was an intruder at the time, this level of force was
unnecessary and constitutionally excessive. There was no
evidence that Adam was resisting arrest or attempting to flee,
and in his affidavit he stated that he “did what [the officers] told
[him] to do” because he knew he was “one against a group.” The
police had no reason to believe that Adam was armed or that any
accomplice was present, and there were four officers available to
subdue him if he became violent. The participation of so many
officers and the use of mace, several guns pointed at Adam’s
head, and handcuffs constituted excessive force against a
cooperative and unarmed subject.
Moreover, the constitutional right in question was clearly
established under the qualified immunity test. The factors
relevant to the excessive force analysis are well-recognized, as
described above. See Sharrar, 128 F.3d at 822; cf. Estate of
Smith v. Marasco, 430 F.3d 140, 150 (3d Cir. 2005) (noting that
a “reasonable officer would be guided by the Sharrar factors in
determining whether to use overwhelming force in a given
situation,” and that “if an officer applies the Sharrar analysis in
an unreasonable manner, he is not entitled to qualified
immunity”). In this case, most of these factors – including the
potential threat posed by the suspect, whether the suspect was
resisting arrest, armed, or attempting to flee, and the ratio of
officers to suspects – clearly suggested the use of a low level of
force.
Thus, based on relevant precedent at the time, a
reasonable officer would not have believed that the level of force
used against Adam Couden was legal under the circumstances.

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In their brief to this Court, plaintiffs refer to common law10
claims against Agent Duffy. Plaintiffs’ complaint does not assert
any such claims, however. Regardless, any common law claims
against Agent Duffy would be barred because an action against the
United States under the FTCA provides the exclusive remedy for
nonconstitutional torts based on the “negligent or wrongful act or
omission of any employee of the Government while acting within
the scope of his office or employment.” 28 U.S.C. § 2679(b)(1);
see also Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994)
(finding that “a claimant’s exclusive remedy for nonconstitutional
torts by a government employee acting within the scope of his
employment is a suit against the government under the FTCA”).
18
See Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3d Cir. 1995)
(finding liability for excessive force where officers pointed guns
at and handcuffed several members of a family where 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”);
Robinson v. Solano County, 278 F.3d 1007,1015 (9th Cir. 2002)
(en banc) (finding the law sufficiently established in 2002 to
recognize the “general principle that pointing a gun to the head
of an apparently unarmed suspect during an investigation” can
constitute excessive force, “especially where the individual
poses no particular danger”). Cf. Sharrar, 128 F.3d at 822
(finding that although police officers “came close to the line,”
there was no use of excessive force where multiple officers used
“Rambo-type behavior” in arresting four men allegedly involved
in a particularly violent domestic assault, where a gun was
unaccounted for and there was “some suggestion” of
involvement with drugs). We conclude that the four individual
defendants in this case are not entitled to qualified immunity as
to the unconstitutional seizure of Adam Couden.
II. Common Law Claims Against the Individual Defendants
Plaintiffs also make common law claims against
defendants Armstrong, Freebery, and Sullivan based on
intentional infliction of emotional distress, assault and battery,
false imprisonment, trespass, and wanton negligence. The10

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“Governmental entity” for purposes of the statute includes11
municipalities, towns, and counties. Del. Code Ann. tit. 10 §
4010(2).
19
District Court concluded that these defendants are immune from
liability under the Delaware Tort Claims Act, Del. Code Ann. tit.
10 § 4011 (2005), and we agree.
The Delaware Tort Claims Act states that “[e]xcept as
otherwise expressly provided by statute, all governmental
entities and their employees shall be immune from suit on any
and all tort claims seeking recovery of damages.” Del. Code11
Ann. tit. 10 § 4011(a). Plaintiffs argue, however, that a statutory
allowance for suit exists under Del. Code Ann. tit. 10 § 4011(c),
which states:
An employee may be personally liable for acts or
omissions causing property damage, bodily injury
or death in instances in which the governmental
entity is immune under this section, but only for
those acts which were not within the scope of
employment or which were performed with
wanton negligence or willful and malicious intent.
This provision is not applicable here, because plaintiffs
cannot establish that the officers’ acts “were not within the scope
of employment” or “were performed with wanton negligence or
willful and malicious intent.” In conducting surveillance, the
officers were clearly acting within the scope of their official
duties. Moreover, viewing the facts in the light most favorable to
the plaintiffs, the officers’ conduct may have been overzealous
but it was not malicious or willful. Under Delaware law, conduct
is “wanton” only where it reflects a “‘conscious indifference’” or
an “‘I-don’t-care’ attitude.” Foster v. Shropshire, 375 A.2d 458,
461 (Del. 1977) (citation omitted). As a matter of law, no such
conduct can be inferred in this case. We therefore affirm the
District Court’s grant of summary judgment as to plaintiffs’
common law claims against defendants Armstrong, Freebery,
and Sullivan.

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20
III. Claims Against the Institutional Defendants
A. The United States
Plaintiffs raise an FTCA claim against the United States,
apparently based on both constitutional and state common law
grounds. The FTCA waives the federal government’s sovereign
immunity as to negligent or wrongful actions by its employees
within the scope of their official duties, where “a private
person[] would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.” 28 U.S.C.
§ 1346(b)(1).
As defendants note, the United States is not liable under
the FTCA for money damages for suits arising out of
constitutional violations. See, e.g., F.D.I.C. v. Meyer, 510 U.S.
471, 477-78 (1994); Williams v. United States, 242 F.3d 169,
175 (4th Cir. 2001); Roundtree v. United States, 40 F.3d 1036,
1038 (9th Cir. 1994); Castro v. United States, 34 F.3d 106, 110
(2d Cir. 1994). Plaintiffs’ constitutional claims against the
United States were therefore properly dismissed.
As for plaintiffs’ common law claims, an FTCA action
could in principle be based on the actions of Agent Duffy.
Although the FTCA waiver of immunity generally does not
apply to claims of assault, battery, false imprisonment, false
arrest, and malicious prosecution, among other intentional torts,
that rule is not applicable to investigative or law enforcement
officers. See 28 U.S.C. § 2680(h). Plaintiffs did not assert
common law claims against Agent Duffy in their complaint,
however. There is therefore no basis in the complaint for an
FTCA claim based on Agent Duffy’s actions.
Plaintiffs also contend that their FTCA action may
proceed based on the actions of Officers Armstrong, Freebery,
and Sullivan. Plaintiffs reason that while these officers are not
formally federal employees, they were acting as federal
employees in their work on the Joint Task Force with members
of the FBI. This claim must fail. First, plaintiffs themselves have
sued the three officers under § 1983, a statute that does not apply

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21
to federal actors. See West v. Atkins, 487 U.S. 42, 48 (1988)
(stating that a § 1983 claimant must show that the alleged
deprivation was committed by a person acting “under color of
state law”). Second, defendants state that at the time of the
conduct in question here, the officers were conducting
surveillance in an attempt to capture a fugitive wanted by the
New Castle County Police Department, not by the federal
government, and plaintiffs have not disputed this assertion. The
investigation originated with New Castle County, and was
passed on by that police department to the Joint Task Force.
Nothing in the record suggests that the actions of the three
officers were taken on behalf of the federal government. See 28
U.S.C. § 2671 (stating that employees of the federal government
include “persons acting on behalf of a federal agency in an
official capacity, temporarily or permanently in the service of the
United States”). The conduct of those officers therefore cannot
form the basis of a claim against the United States.
Thus, we affirm the grant of summary judgment as to
plaintiffs’ FTCA claims.
B. New Castle County, the New Castle County
Police Department, the City of Wilmington, and
the Wilmington Police Department
Plaintiffs also assert a § 1983 claim against New Castle
County, the New Castle County Police Department, the City of
Wilmington, and the Wilmington Police Department. We discern
no error in the District Court’s grant of summary judgment as to
these defendants. The Supreme Court has held that a suit under §
1983 may not be maintained against a local government for an
injury inflicted by its employees. Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978). “Instead, it is when execution of a
government’s policy or custom . . . inflicts the injury that the
government as an entity is responsible under § 1983.” Id. This
rule also applies to police departments. See, e.g., Merkle v.
Upper Dublin Sch. Dist., 211 F.3d 782, 791 (3d. Cir. 2000);
McCullah v. Gadert, 344 F.3d 655, 662 (7th Cir. 2003).
Plaintiffs have alleged no facts supporting the claim that policies
or customs of the municipal defendants in this case caused the

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22
injuries alleged by plaintiffs. Summary judgment was therefore
proper as to these defendants.
IV. Grant of Summary Judgment sua sponte
Officer Sullivan, the City of Wilmington, and the
Wilmington Police Department did not file dispositive motions
in this case, and plaintiffs argue that the District Court erred by
granting summary judgment sua sponte to those parties. “It has
long been established that, under the right circumstances, district
courts are entitled to enter summary judgment sua sponte.”
Gibson v. Mayor and Council of Wilmington, 355 F.3d 215, 222
(3d Cir. 2004). The court may not enter judgment, however,
without “placing the adversarial party on notice that the court is
considering a sua sponte summary judgment motion” and
providing that party “an opportunity to present relevant evidence
in opposition to that motion.” Chambers Dev. Co. v. Passaic
County Util. Auth., 62 F.3d 582, 584 n.5 (3d Cir. 1995); see also
Otis Elevator Co. v. George Washington Hotel Corp., 27 F.3d
903, 910 (3d Cir.1994). Notice is satisfied if “‘the targeted party
had reason to believe the court might reach the issue and
received a fair opportunity to put its best foot forward.’” Gibson,
355 F.3d at 223-24 (quoting Leyva v. On the Beach, Inc., 171
F.3d 717, 720 (1st Cir. 1999) (internal citation and quotation
marks omitted)).
We affirm the District Court’s sua sponte grants in this
case as to those holdings for which the issue is not mooted by
our other rulings – namely, the District Court’s dismissal of the
common law claims against Officer Sullivan and its dismissal of
the § 1983 claims against the City of Wilmington and the
Wilmington Police Department. Although “the sua sponte grant
of summary judgment, without giving notice to the parties, is not
the preferred method by which to dispose of claims,” Gibson,
355 F.3d at 224, we find that the requirements for a sua sponte
grant are satisfied here. The Court’s grounds for dismissal of the
common law claims against Officer Sullivan were identical to
those for Officers Armstrong and Freebery, who did file motions
for summary judgment. Similarly, the District Court’s grounds
for dismissal of the claims against Wilmington and the

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Plaintiffs also argue that the District Court erred in12
denying their request under Federal Rule of Civil Procedure 56(f)
that defendants’ summary judgment motions be denied to allow for
further discovery. We review denial of a Rule 56(f) motion for
abuse of discretion. See Radich v. Goode, 886 F.2d 1391, 1393 (3d
Cir. 1989). Under Rule 56(f), a court may order a continuance for
further discovery if it appears “from the affidavits of a party
opposing [summary judgment] that the party cannot for reasons
stated present by affidavit facts essential to justify the party’s
opposition.” The District Court denied plaintiffs’ request on the
grounds that plaintiffs did not file an affidavit to support the
motion, as required under Rule 56(f), and that they did not identify
the information sought, how it would help their case, or why it had
not already been obtained. Couden, 305 F. Supp. 2d at 386. These
grounds were reasonable, and we conclude that the District Court
did not abuse its discretion in this regard.
23
Wilmington Police Department were identical to those for New
Castle County and the New Castle County Police Department,
which also filed motions for summary judgment. Plaintiffs
therefore had notice of all of the issues that the District Court
would reach and had a fair opportunity to address them in full.12
V. Conclusion
Based on the reasoning above, we reverse the District
Court’s grant of summary judgment as to plaintiffs’ § 1983
claims against Officers Armstrong, Freebery, and Sullivan, and
plaintiffs’ Bivens claim against Agent Duffy. We affirm the
grant of summary judgment as to plaintiffs’ common law claims
against Officers Armstrong, Freebery, and Sullivan, and against
Agent Duffy. We also affirm the grant of summary judgment as
to all claims against defendants Wilmington Police Department,
City of Wilmington, New Castle County Police Department, and
New Castle County. Lastly, we affirm the grant of summary
judgment as to plaintiffs’ claims against the United States under
the FTCA.

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24
Couden v. Duffy, No. 04-1732
Weis, Senior Circuit Judge, Dissenting.
The role of the police is not a simple one. Officers
are charged with the duty of protecting the community from
criminal elements and with responding to calls for help by the
citizenry in widely varying circumstances, all the while carrying
out confrontational occurrences with due regard for the
constitutional rights of the citizenry. Because the line between
what proper enforcement requires and what will constitute a
violation of established rights is often indistinct, the law
recognizes qualified immunity for police officers and other
officials to encourage effective enforcement by easing the
likelihood of personal liability in carrying out official duties.
Qualified immunity is an important legal concept
designed to “avoid excessive disruption of government and
permit the resolution of many insubstantial claims on summary
judgment.” Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). If officers are
not on notice that their conduct in particular situations is clearly
unlawful, summary judgment based on qualified immunity is
appropriate. This immunity is broad in scope and protects “all
but the plainly incompetent or those who knowingly violate the
law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
A narrow, cramped approach to qualified
immunity does not serve the community nor is it in accord with
Supreme Court jurisprudence. As the Court of Appeals for the
Fourth Circuit has recognized,
“If every mistaken seizure were to
subject police officers to personal
liability under § 1983, those same
officers would come to realize that
the safe and cautious course was
always to take no action. The
purposes of immunity are not served
by a police force intent on escaping

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25
liability to the cumulative detriment
of those duties which communities
depend upon such officers to
perform.”
Gooden v. Howard County, 954 F.2d 960, 967 (4 Cir.th
1992) (en banc).
The Supreme Court has prescribed a two-step
process in evaluating a claim for qualified immunity. Saucier,
533 U.S. at 201. First, plaintiffs must establish that defendants
violated a constitutional or statutory right. Id. If the court
determines that defendants violated a constitutional or statutory
right, the next step is to determine whether the right in question
was clearly established. Id. Often this second inquiry is founded
on whether a novel issue or a well-established interpretation of
the law is in controversy. If there is doubt about the state of the
law, the officer is granted immunity.
There is another class of qualified immunity cases,
however, where the issue is not whether there was a
misunderstanding about the law, but rather whether the officer
made a reasonable mistake of fact in carrying out his duties. See
Butz v. Economou, 438 U.S. 478, 507 (1978) (holding that
officers “will not be liable for mere mistakes in judgment,
whether the mistake is one of fact or one of law”).
The difference between a mistake of fact and a
mistake of law is illustrated by the not unusual situation
involving an unlawful search of a home. In some instances,
there may be a legal question as to the scope of the search
authorized by the warrant. But in other instances there may be a
mistake of fact, such as an error with respect to the particular
house to be searched. Qualified immunity may be applicable in
both cases. See e.g., Maryland v. Garrison, 480 U.S. 79 (1987)
(wrong apartment searched); Dean v. City of Worcester, 924
F.2d 364 (1 Cir. 1991) (wrong person arrested because ofst
mistaken identity).
The case before us includes mistakes of fact on the

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26
part of everyone involved. The police believed that they were
confronted by criminals in the commission of burglary or by a
fugitive at large. The plaintiffs were under the erroneous
impression that they were threatened by armed robbers.
At first blush, as plaintiffs would have us believe,
it would be unlikely that police officers would reasonably think
that a 14-year-old boy carrying a skate board to his home was a
burglar. But, there are critical and undisputed facts that the
plaintiffs fail to discuss that the District Court took into
consideration. Although we consider the evidence in the light
favorable to the plaintiffs, we must review all of the undisputed
facts, not just those that the plaintiff chooses to emphasize.
The Supreme Court has explained,
“ . . . the mere existence of some
alleged factual dispute between the
parties will not defeat an otherwise
properly supported motion for
summary judgment; the requirement
is that there be no genuine issue of
material fact. . . . [T]he judge’s
function is not himself to weigh the
evidence and determine the truth of
the matter but to determine whether
there is genuine issue for trial. . . .
If the evidence is merely colorable,
or is not significantly probative,
summary judgment may be granted.
. . . In essence though, the inquiry is
. . . ‘whether the evidence presents a
sufficient disagreement to require
submission to a jury or whether it is
so one-sided that one party must
prevail as a matter of law.’”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,
249-50, 251-52 (1986) (emphasis in original) (internal citations
omitted).

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The parties failed to provide us with photos or sketches13
of the scene which would have been most helpful.
27
This is a somewhat different standard than that used in
Federal Rule of Civil Procedure 12(b)(6) motions where even
the sometimes fanciful allegations in a plaintiff’s complaint are
accepted as true.
The proper, comprehensive view of all of the
evidence here develops the following picture. The plaintiffs’
home was on the corner of Sanford Drive and Argyle Road.
Pamela Couden stopped her car on Argyle Road and her son
Adam got out. He crossed Argyle toward the rear of his home.
From there, he was able to gain entrance to the rear of the garage
which apparently was on the far side of the house rather than
alongside Argyle Avenue. The plaintiffs admit it was dark at13
the time, a critical factor in evaluating what happened.
Pamela waited in the car for some unspecified time
until she decided that Adam was taking too much time. She then
drove the car around the corner to her left on to Sanford Drive
and pulled into her driveway in front of the garage. She could
not see Adam so she put on the high beams of her headlights and
blew the horn. Still getting no response, she blew the horn
again.
At that point, she noticed officer Armstrong (in
plain clothes) walking slowly on Argyle Street toward her.
According to Pamela, he approached the car with a gun, pointed
it toward her head and tried to open the door. She alleges that
Armstrong did not identify himself although that is contradicted
by Officer Freebery. Pamela panicked and drove her car to the
left toward Officer Freebery, who had been following behind
Armstrong. Faced with a car coming toward him with the
headlights on high beams, Freebery threw his flashlight at the
auto and broke the passenger side window.
Adam who had entered the garage by this time,
heard the car wheels screeching, the noise of the broken glass

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Plaintiffs’ Consolidated Response to the Defendants’14
Motion to Dismiss or for Summary Judgment in the District Court
at 5.
28
and his mother screaming, “He’s got a gun!” As Adam started to
leave the garage, he saw a man with a gun charging toward him.
Adam slammed the door shut and held it tight for a while. He
then ran to a door that led into the house where he was seized by
a group of men, wrestled to the floor, sprayed with pepper spray
or mace and handcuffed.
Plaintiffs have conceded that “[d]efendants
Armstrong and Freeberry [sic] believed Adam[’]s mom was
conspiring with the fugitive (Adam), for the purpose of helping
him get away. For this reason and because of the totality of the
circumstances which led the [d]efendants to believe the fugitive
was dangerous or violent, they thought that they needed to get
out of their car, and go onto the Couden’s property to
investigate.”14
Even reviewing the disputed facts in favor of the
plaintiffs, it is clear that this case was one of mistaken identity
and an erroneous appraisal of the circumstances by the police
officers. That reasonable mistake of fact neither establishes a
constitutional violation nor does it deprive the officers of
qualified immunity. The majority opinion concedes that the
officers did not act maliciously or wilfully, though they may
have been overzealous.
Pamela Couden
Although the majority concludes that Officer
Armstrong violated Pamela Couden’s Fourth Amendment rights
by seizing her, it is undisputed that Pamela fled from the police
officers. She was not detained in any sense and she has not
established a Fourth Amendment violation.
California v. Hodari D., 499 U.S. 621 (1991),
discussed whether “with respect to a show of authority as with

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29
respect to application of physical force, a seizure occurs even
though the subject does not yield. We hold that it does not . . .
neither usage nor common-law tradition makes an attempted
seizure a seizure.” Id. at 626, 626 n.2 (emphasis in original).
In that case, the Court held that a “seizure” in the
constitutional sense did not occur until a pursuing police officer
tackled a fleeing suspect. The Court concluded that even if the
officer’s pursuit and calling for the suspect to halt acted as a
show of authority, a seizure did not occur until the physical
contact occurred.
County of Sacramento v. Lewis, 523 U.S. 833
(1998), reaffirmed Hodari. In Lewis, the Court held that no
Fourth Amendment seizure occurred when a pursuing police car
sought to stop a suspect by using flashing lights, but accidentally
stopped him by crashing into him.
No seizure occurs until a suspect has submitted to
the show of authority that makes her feel she is not free to leave
or where the officer applies physical force to her. “If [an
individual] manifests his belief that he has not been seized by
attempting to flee, he has not submitted to a show of authority
and, therefore, has not been seized.” U.S. v. Smith, 423 F.3d 25,
31 (1st Cir. 2005) (citing Hodari D., 499 U.S. at 626-29).
At best, the officers here may have attempted to
seize Pamela, but as the Supreme Court has recognized,
“[a]ttempted seizures of a person are beyond the scope of the
Fourth Amendment.” Lewis, 523 U.S. at 845 n.7.
Even if the officers’ conduct could have been
construed as a seizure, police have authority under Terry v.
Ohio, 392 U.S. 1 (1968), to accost an individual and restrain his
freedom to walk away. A so-called “Terry stop” requires the
officer to have a reasonable suspicion “that criminal activity is
afoot.” Here, there was information that a fugitive was in the
area and the police were on alert. Pamela’s conduct in first
parking her car on Argyle Street to allow Adam to exit, then later
moving over to Sanford Drive was enough to lead the officers to
suspect something unusual was in progress, at least enough to

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30
justify inquiry.
The officers reasonably could have interpreted
Pamela’s flashing of her high beams and honking of her horn as
a warning to the individual who had entered the garage.
Considering all the circumstances, Officer Armstrong did not act
unreasonably in approaching Pamela’s car for questioning.
Unfortunately, the inquiry which could have averted the situation
was frustrated by Pamela’s fleeing in a panic, a circumstance
which reasonably supported the officer’s suspicions that indeed
something was amiss.
The test to determine whether the officers are
entitled to qualified immunity is whether they acted reasonably
under the circumstances that then existed. All the events leading
up to the incident are relevant. Abraham v. Raso, 183 F.3d 279,
291 (3d Cir. 1999).
The fact that Officer Armstrong displayed a pistol
was not unreasonable in light of the information about a fugitive
suspected of weapons violations being in the area. The display
of a gun did not act to make the incident a seizure nor was it
otherwise unconstitutional.
In Mellott v. Heemer, 161 F.3d 117 (3d Cir. 1999),
five deputy United States Marshals entered the home of
plaintiffs to effect an eviction. Allegedly, the marshals pointed
loaded guns at plaintiffs. In addition, one of the plaintiffs
asserted that she was pushed into a chair on two occasions and a
second plaintiff claimed that he was led at gunpoint into a
potentially dangerous situation. Weighing the factors outlined in
Graham v. Connor, 490 U.S. 386, 396 (1989), we held that the
conduct did not violate the Fourth Amendment. Although the
crime was not severe and the plaintiffs were not actively
resisting, there was reason to believe that they posed a threat to
the officers because there was evidence that firearms were in the
house. Id. at 122-23.
In Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997),
we held that it was not a constitutional violation to use twenty

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31
officers, including a SWAT team armed with machine guns and
an FBI hostage negotiator to carry out a domestic violence arrest.
128 F.3d at 821. We noted that the methods used by the police
in that case “appear[] extreme,” but that “[i]t does not follow . . .
that the extreme methods used in effecting the arrests, such as
requiring plaintiffs to lie face down in the dirt, with guns to their
heads and vulgar threats, were constitutionally excessive.” Id.
Officer Freebery did not act unreasonably in
attempting to stop the car by throwing a flashlight at it. He was
confronted by an automobile coming at him in a life-threatening
fashion. In rapidly occurring events like this, officers must be
given the benefit of the doubt as to the proper reaction to the
situation. See Carswell v. Borough of Homestead, 381 F.3d 235,
240 (3d Cir. 2004) (noting that “‘[w]here the officer has
probable cause to believe that the suspect poses a threat of
serious physical harm, either to the officer or others, it is not
constitutionally unreasonable to prevent escape by using [even]
deadly force’” (quoting Tennessee v. Garner, 471 U.S. 1, 11
(1985)).
In Brosseau v. Haugen, 543 U.S. 194, 201 (2004),
the Court concluded that in some circumstances it may be
reasonable to use deadly force to stop an otherwise unarmed
suspect fleeing in a car. The Court held that there was no clearly
established violation of the Fourth Amendment where the officer
reasonably believed the moving vehicle posed a threat of danger
to police or others. Officer Freebery showed commendable
restraint in tossing the flashlight rather than firing his pistol at
the car. The threat of injury to the officers and possibly others,
as well as the fact that the car was fleeing what then appeared to
be a crime in progress certainly justified Officer Freebery’s
conduct.
There is no evidence that Officer Sullivan and
Agent Duffy participated in any way with the confrontation with
Pamela Couden and she has not established any constitutional
violation as to them.

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32
Adam Couden
I agree with my colleagues that once Pamela sped
away in her car the officers were reasonably concerned that a
crime was underway and were justified in their decision to
investigate the house further. When one of the officers
approached, Adam slammed the back door of the garage and
held it tight for a while, preventing the police from entering.
Thus, the officers could reasonably believe that, in view of all
the circumstances, Adam was resisting apprehension.
The police did not know that Adam was unarmed
or that he was 14 years old. Plaintiffs have not disputed the
officers’ assertion that Adam was about six feet tall and weighed
about 200 lbs. The officers’ request after Adam was subdued to
produce a driver’s license confirmed that he appeared to be older
than his years.
In short, there is no reason for the police to assume
that they were not confronting an armed burglar or the fugitive
they were seeking. Adam’s allegation that four officers seized
him and pushed him to the floor does not establish an
unconstitutional use of excessive force. Nor does the assertion
that in addition to being held on the floor, Adam was sprayed
with mace or pepper spray establish an unconstitutional use of
excessive force. See, e.g., Gallegos v. City of Los Angeles, 308
F.3d 987, 991 (9th Cir. 2002) (use of drawn guns on a man
believed to be a suspect was reasonable); Dean v. City of
Worcester, 924 F.2d 364, 368 (1 Cir. 1991) (reasonable forst
police to push man believed to be a suspect to the ground, push a
knee in his back, place a gun to his head and threaten to “blow
his head off,” and then leave him handcuffed for thirty minutes
while they determined his identity).
It is an important factor that Adam was not injured
by the efforts used to subdue him. See Saucier, 533 U.S. 194,
209 (2001) (noting that the “conclusion [that the officers did not
use excessive force] is confirmed by the uncontested fact that the
force used — dragging [the defendant] from the area and

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shoving him while placing him into a van – was not so
excessive that [the defendant] suffered hurt or injury”); Mellot,
161 F.3d at 122 (noting that it is “important to consider . . .
whether ‘the physical force applied was of such an extent as to
lead to injury.’” (quoting Sharrar, 128 F.3d at 822)).
In reviewing excessive force claims, a court should
consider the following factors among others:
“the possibility that the persons subject to
the police action are themselves violent or
dangerous, the duration of the action, whether the
action takes place in the context of effecting an
arrest, the possibility that the suspect may be
armed, and the number of persons with whom the
police officers must contend at one time.”
Sharrar, 128 F.3d at 822. Further, the reasonableness of
the use of force is evaluated in light of “‘the severity of the
crime at issue, whether the suspect poses an immediate threat to
the safety of the officer or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight’” Carswell,
381 F.3d at 240 (quoting Graham, 490 U.S. at 396).
In 20/20 hindsight one may conjecture that two
officers might have been adequate to subdue Adam. However,
they did not have the leisure nor the information to make such a
choice. Indeed, in the circumstances it would appear that the use
of superior force was a desirable measure to forestall attempts or
inclinations by the perceived burglar to resort to a deadly
weapon, especially when Tiffany Couden, an innocent bystander,
was standing nearby.
The fugitive the officers sought was wanted on
weapons charges among others. Plaintiffs have alleged that the
police believed that Adam was the fugitive, and they could
assume that he might be armed.
In Carswell, we concluded that a police officer was

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entitled to qualified immunity even though, through an error in
judgment, he had shot and killed a fleeing individual. The case
before us also involved a mistaken, but reasonable, belief by
police officers; fortunately it did not result in injury to Adam.
The twenty minutes that he stayed in handcuffs is
simply not enough time to vitiate qualified immunity. See
Torres v. United States, 200 F.3d 179, 186 (3d Cir. 1999)
(reasonable use of force to leave an unarmed suspect wearing
only a towel handcuffed for one and a half to three hours); Dean,
924 F.2d at 368 (reasonable to leave man handcuffed for one-
half hour while officers determined whether he was the fugitive
they sought).
In hindsight, twenty minutes might have been longer than
necessary here, but again, that misjudgment is not sufficient to
expose the police to personal liability.
The cases the majority cites are distinguishable. In
Baker v. Monroe Township, 50 F.3d 1186 (3d Cir. 1995), the
Court found that officers had used excessive force where they
handcuffed several members of a family and continued to point
guns at them where 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. In reaching this
conclusion, the Court noted that “the appearances were those of
a family paying a social visit.” Id. Moreover, Baker was pre-
Saucier and did not analyze the official immunity issue
independently of the asserted constitutional violation.
In Robinson v. Solano County, 278 F.3d 1007 (9th
Cir. 2002) (en banc), another case cited by the majority, a man
went to meet authorities when they arrived at his house in
response to a call that he had shot his neighbor’s two dogs with a
shotgun. He calmly identified himself as the man involved with
the dogs. One of the officers pointed a gun at his head from only
three feet away. The Court found that this conduct violated the
Fourth Amendment, but nevertheless granted official immunity.
Id. at 1015-16.

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Until he was identified, Adam Couden, on the
other hand, could have posed a danger, and the police justifiably
used the force they did to protect Tiffany as well as themselves
from any potential harm.
Sua Sponte Grant of Summary Judgment
I also believe that the District Court correctly
granted summary judgment sua sponte with respect to Officer
Sullivan and the City of Wilmington. District courts are entitled
to grant summary judgment sua sponte in appropriate
circumstances. See Celotex Corp. v. Catrett, 477 U.S. 317, 326
(1986) (“[D]istrict courts are widely acknowledged to possess
the power to enter summary judgments sua sponte, so long as the
losing party was on notice that she had to come forward with all
of her evidence.”); see also Chambers Dev. Co. v. Passaic
County Utils. Auth., 62 F.3d 582, 584 n.5 (3d Cir. 1995); Otis
Elevator Co. v. George Washington Hotel Corp., 27 F.3d 903,
909-10 (3d Cir.1994).
In Gibson v. Mayor and Council of the City of
Wilmington, 355 F.3d 215 (3d Cir. 2004), we affirmed a sua
sponte grant of summary judgment despite lack of notice.
Although we explained that sua sponte grants of summary
judgment without notice are not preferable, we also noted that
the requirement of notice could be waived in the presence of a
fully developed record, lack of prejudice or a judgment based on
a purely legal issue. Id. at 224. In Gibson we found a lack to
prejudice to the complaining party.
Three of the four officers in the present case filed
motions to dismiss the case or, in the alternative, for summary
judgment. Plaintiffs were on notice to present all of their
evidence. The grounds for granting summary judgment in favor
of the moving defendants also applied to the claims against the
non-moving defendant, Officer Sullivan.
It is significant that the plaintiffs have not shown
how Sullivan’s actions were such as to differentiate his liability

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from that of the other officers. Indeed, he did not participate in
the encounter with Pamela Couden and only tangentially took
part in subduing Adam.
In their briefs in this Court, the Coudens have
failed to cite any facts that would demonstrate prejudice to their
claims against officers Sullivan and the City of Wilmington. I
would affirm the judgment in Officer Sullivan’s favor as well,
rather than remand to create unnecessary paper shuffling with an
inevitable result.
The community not only has the right to have its
police officers act with restraint, but also to respond responsibly
to criminal activity without undue concern over potential
lawsuits against them. The law should not, and does not, impose
restrictions on proper use of force, the absence of which would
endanger an officer’s or bystander’s life.
I believe that the officers in this case made a
mistake in judgment that did not violate the plaintiffs’
constitutional rights, but even if they violated the plaintiffs’
rights, qualified immunity applies because of reasonable
mistakes of fact.
I would affirm the judgment of the District Court
as to all parties.

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