Earlene Herbert, Administrator of the Estate of Craig Guest, Deceased v. JOHN WILBUR, Individually

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-2629
EARLENE HERBERT, ADMINISTRATOR
OF THE ESTATE OF CRAIG GUEST,
DECEASED
v.
JOHN WILBUR, Individually and
as a Police Officer for the CITY OF PITTSBURGH;
CITY OF PITTSBURGH
Earlene Herbert;
* LeRoy Wofford;
* Estate of Craig Guest, Deceased
Appellants
(* Pursuant to Rule 12(a), F.R.A.P.)
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 98-CV-01111)
District Court Judge: Honorable Donald J. Lee
Submitted Under Third Circuit LAR 34.1(a)
March 8, 2002
Before: BECKER, Chief Judge, ALITO and RENDELL, Circuit Judges
(Opinion Filed: April 17, 2002)
OPINION OF THE COURT
PER CURIAM:
This is an appeal from summary judgment entered in favor of the appellees,
police officer John Wilbur and the City of Pittsburgh. Because we write for the parties
only, the background of the case need not be set out. Our review of the District Court’s
summary judgement is plenary. See Olson v. General Elec. Astrospace, 101 F.3d 947,
951 (3d Cir. 1996).
I.
As an initial matter, we agree with the District Court’s conclusion that

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Officer Wilbur had a reasonable suspicion of car theft or other criminal activity when, at
approximately 1:15 a.m., he saw three passed-out occupants of a car stopped in the
middle of a major intersection wearing gloves (in June) with a screwdriver visible inside
the car, especially where he had heard an earlier broadcast of an attempted car theft in the
area. We also agree that Officer Wilbur had reasonable suspicion that Craig Guest was
attempting to swallow contraband or evidence when he suddenly sat up and popped
something in his mouth. (We note, however, that there is no evidence in the record that
Guest had drugs in his system or was using drugs.)
Whether or not the ensuing tussle between Officer Wilbur and Guest
resulted in an unlawful seizure under the Fourth Amendment, we reject the appellant’s
argument that we should adopt "a bright line rule" wherein an officer’s unlawful seizure
makes the officer liable for all of the harm that ensues from any subsequent use of force.
We rejected this kind of "but for" causation in Bodine v. Warwick, 72 F.3d 393, 400 (3d
Cir. 1995). In Bodine, we stated that even when police action preceding the allegedly
excessive use of force was unlawful, "under basic principles of tort law, [] the troopers
would be liable for the harm ’proximately’ or ’legally’ caused by their tortious conduct . .
. . not . . . for all of the harm caused in the . . . but-for sense." Id. (emphasis added).
also noted that the officers would not be liable for harm produced by a "superseding
cause." Id. Our hypothetical in Bodine is instructive in this case:
Suppose that three police officers go to a suspect’s house to execute an
arrest warrant and that they improperly enter without knocking and
announcing their presence. Once inside, they encounter the suspect,
identify themselves, show him the warrant, and tell him that they are
placing him under arrest. The suspect, however, breaks away, shoots and
kills two of the officers, and is preparing to shoot the third officer when
that officer disarms the suspect and in the process injures him. Is the third
officer necessarily liable for the harm caused to the suspect on the theory
that the illegal entry without knocking and announcing rendered any
subsequent use of force unlawful? The obvious answer is "no." See
George v. City of Long Beach, 973 F.2d 706 (9th Cir. 1992), cert. denied,
507 U.S. 915 (1993). The suspect’s conduct would constitute a
"superseding" cause, see Restatement (Second) of Torts, 442 (1965), that
would limit the officer’s liability. See id. 440.
Id.
Here, even if Officer Wilbur violated the Fourth Amendment when he
struggled to pull Guest out of the backseat of the car, it does not follow that all of the
subsequent damages were proximately caused by that violation. Following the Bodine
hypothetical, when Officer Wilbur’s hand was trapped in the car door and the driver
drove off, dragging him along the pavement at speeds up to 70 miles per hour, this
conduct was a superseding cause that appropriately cuts off Officer Wilbur’s liability
with respect to his use of deadly force in self-defense. This is the clear teaching of
Bodine, and we decline to reject it here.
II.
We also do not agree with the appellant’s contention that there is sufficient
evidence to support the theory that the officer shot Guest before his hand got stuck in the
passenger side door and was subsequently dragged down Fifth Avenue. Mary Nolan, a
registered nurse who witnessed the events at the intersection of Shady and Fifth, testified
that she never saw Officer Wilbur unholster or draw his gun, App. at 84, and that the last
thing she heard before leaving the scene was the screeching-tires sound of the Honda
fleeing the intersection, App. at 84. Robert Drysdale, a bystander, testified that at the
intersection of Shady and Fifth, Officer Wilbur reached into the back seat of the Honda
with his left hand and did not have a gun in his right hand. App. at 163. After the door
closed on Officer Wilbur’s hand, Drysdale also saw Officer Wilbur jump on top of the
back trunk and grab with his right hand his free hand the other side of the car to hold
on. Drysdale testified that, as the car sped down Fifth Avenue, Officer Wilbur fell off
the trunk, was being dragged by his left hand, and only then, about a hundred yards later,
were gun shots fired. App. at 167. Detective Foley, pursuing the Honda in his police
car, stated that he witnessed Wilbur fall off the trunk of the Honda before shattered glass
(from the bullets hitting the window) began falling from the car. App. at 130-31.

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Although the appellant points to an expert’s statement that "I find it hard to
believe that the officer was able to fire his revolver while the car was traveling over 20
mph," the same expert stated that he could find no "inconsistencies in the contention that
shots were fired only after the officer’s hand was trapped in the door and the car had
started to move." App. at 310 (emphasis added). The appellant also points to the
forensics report to bolster the contention that shots were fired while Wilbur was on the
trunk (i.e. before being dragged) because glass fragments were found in the back side of
Guest’s head, suggesting that the "bullet striking Craig Guest’s head struck the rear
windshield first." App. at 433. Appellant’s conclusion assumes that at all times during
the chase Guest was sitting with his head facing forward. The presence of glass in the
back of Guest’s head could easily be explained if Guest was turned to the side perhaps
looking out the back window to see how many police cars were chasing them when
Officer Wilbur’s shot fired into the side window and entered the back of Guest’s head.
Because of the unanimity of the testimony that shots were fired only after Officer Wilbur
fell from the trunk and was being dragged, we conclude that there is insufficient
evidence to support the contrary conclusion that Officer Wilbur shot his gun before that
time.
III.
Finally, we address the question whether Wilbur’s use of force was
"objectively reasonable." See Graham v. Connor, 490 U.S. 386, 397 (1989). In
Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999), we articulated the correct inquiry:
"[W]as it objectively reasonable for the officer to believe, in light of the totality of the
circumstances, that deadly force was necessary to prevent the suspect’s escape, and that
the suspect posed a significant threat of death or serious physical injury to the officer or
others?" Id. at 289. The Supreme Court has stated that the 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." Graham, 490 U.S. at 396. In Mellott v. Heemer,
161 F.3d 117 (3d Cir. 1998), we further elaborated that "[w]hen balancing these factors,
we must remember that ’[t]he "reasonableness" of a particular use of force must be
judged from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.’" Id. at 122 (quoting Graham, 490 U.S. at 396).
Here, agree with the District Court that Officer Wilbur did not exercise
unreasonable force in light of the totality of the circumstances. Officer Wilbur was being
dragged by his left hand from a car as it sped down Fifth Avenue at speeds approaching
70 miles per hour. Fearing for his life, he shot his gun into the car hoping that this would
make the driver stop the car. We are not willing to conclude on this record that Officer
Wilbur’s use of force was unreasonable given the totality of the circumstances.
We have considered all of the appellant’s arguments and see no basis for
reversal. The judgment of the District Court is therefore affirmed.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
Circuit Judge

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