Kubicki v. Whitemarsh , 270 F. App'x 127 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-20-2008
Kubicki v. Whitemarsh
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4905
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Recommended Citation
"Kubicki v. Whitemarsh" (2008). 2008 Decisions. Paper 1407.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-4905
____________
JOSEPH T. KUBICKI, ON HIS OWN BEHALF AND AS PARENT AND
NATURAL GUARDIAN ON BEHALF OF THE MINOR, JOSEPH KUBICKI;
JOSEPH KUBICKI A MINOR,
Appellants,
v.
WHITEMARSH TOWNSHIP; JOHN DOE# 1-3 POLICE OFFICERS,
Appellees.
____________
On Appeal from United States District Court
for the District of Eastern Pennsylvania
(D.C. No. 04-cv-05780)
District Court Magistrate Judge: Honorable Linda K. Caracappa
____________
Submitted Under Third Circuit LAR 34.1(a)
March 6, 2008
Before: BARRY, JORDAN and HARDIMAN, Circuit Judges.
(Filed: March 20, 2008)
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Joseph T. Kubicki (Kubicki) and his son, Joseph J. Kubicki, appeal the District
Court’s grant of summary judgment in favor of three Whitemarsh Township police
officers. We will affirm in part, vacate in part, and remand.
I.
Because we write exclusively for the parties, who are familiar with the facts and
proceedings below, we will not revisit them here.
We will affirm the District Court’s grant of summary judgment only if there are no
genuine issues of material fact and the officers are entitled to judgment as a matter of law.
See F ED. R. C IV. P. 56(c); Feesers, Inc. v. Michael Foods, Inc., 498 F.3d 206, 212 (3d Cir.
2007). In reviewing the record below, we construe the facts and draw all reasonable
inferences in the Kubickis’ favor. Michael Foods, 498 F.3d at 212. The substantive law
of exigent circumstances and excessive force determines which facts are material.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Kubicki and his son argue that the officers violated their Fourth Amendment rights
by entering their home without a warrant. A warrantless home entry is presumptively
unconstitutional, but “exigent circumstances” can excuse the warrant requirement. See
Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984). Where police officers assert exigency,
they “reasonably must believe that someone is in imminent danger.” Parkhurst, 77 F.3d
at 711 (emphasis in original).
2
Our review of the record reveals disputed facts regarding the reasonableness of the
officers’ belief that someone at 402 Roberts Avenue was in imminent danger. The
Kubickis testified that it was quiet in their upstairs apartment, while the officers reported
that they heard “an agitated male’s voice coming from the second floor apartment.” In
addition, the Kubickis testified that they heard nothing downstairs (where they can
usually “hear real good”), while the officers asserted that a “loud disturbance” occurred
that night in the first floor apartment. Finally, the Kubickis’ testimony that they did not
hear the police yelling until after they entered the otherwise quiet apartment contradicts
the officers’ testimony that they repeatedly knocked and announced before entering.
Because these disputed facts are material to determining whether the officers reasonably
believed that exigent circumstances existed, we must reverse the District Court’s grant of
summary judgment on this count. See Couden v. Duffy, 446 F.3d 483, 493 (3d Cir. 2006).
B.
Kubicki next argues that the officers employed excessive force. Like the exigent
circumstances inquiry, the excessive force inquiry asks “whether the officers’ actions
[were] ‘objectively reasonable’ in light of the facts and circumstances confronting them.”
Graham v. Connor, 490 U.S. 386, 397 (1989). In assessing the reasonableness of the
officers’ actions, we account for the fact that they must make “split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the
3
amount of force that is necessary.” Couden, 446 F.3d at 497 (quoting Graham, 490 U.S.
at 397).
Accepting Kubicki’s version of the facts, we find the officers’ belief that Kubicki
posed a threat to them was objectively reasonable. Kubicki and his son testified that
when the officers instructed Kubicki to put his hands behind his head, he put them behind
his back instead. Based upon this disobedience, a reasonable officer would be justified in
fearing that Kubicki was reaching for a weapon. We find the force employed to
neutralize this threat reasonable and affirm the District Court’s grant of summary
judgment on this claim. Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994).1
We have considered all of the contentions raised by the parties and conclude that
no further discussion is necessary. The judgment of the District Court will be affirmed in
part, vacated in part, and remanded for further proceedings consistent with this opinion.
1
In light of our decision that material issues of fact are in dispute regarding the
reasonableness of the warrantless entry, we do not reach the question of whether a
constitutional violation occurred for purposes of qualified immunity.
4