Bodine v. Warwick

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
12-26-1995
Bodine v. Warwick
Precedential or Non-Precedential:
Docket 94-7510
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Recommended Citation
"Bodine v. Warwick" (1995). 1995 Decisions. Paper 316.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/316
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 94-7510 and 94-7621
____________
HARRY W. BODINE, JR.,
Appellant in 94-7510
v.
JAMES WARWICK, Trooper; RICHARD FRUNZI,
Trooper; PHILIP PITT, Trooper; STATE OF
DELAWARE; CLIFFORD M. GRAVIET, Colonel;
ARTHUR BLANSFIELD, Captain
Trooper James Warwick; Trooper Richard
Frunzi, Trooper Philip Pitt,
Appellants in 94-7621
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
(D.C. Civil No. 92-00727)
____________________
Argued: June 8, 1995
Before: BECKER, NYGAARD, and ALITO, Circuit Judges
(Opinion Filed: December 26, 1995)
____________________
MARK B. FROST, ESQ. (Argued)
Pier 5 at Penn's Landing
Philadelphia, PA 19106
Attorney for Appellant/
Cross Appellee, Harry W. Bodine
GREGG E. WILSON, ESQ. (Argued)
JEFFREY M. TASCHER
Deputy Attorneys General
DEPARTMENT OF JUSTICE
820 N. French Street
Wilmington, DE 19801
1
Attorneys for Appellees/
Cross Appellants, Warwick, Frunzi
and Pitt
____________________
OPINION OF THE COURT
____________________
ALITO, Circuit Judge:
Harry W. Bodine, Jr. filed this action, seeking, among
other things, to recover under 42 U.S.C. §1983 on claims that
certain Delaware State Troopers violated his Fourth Amendment
rights by illegally entering his house without first knocking and
requesting admission, by arresting him without probable cause,
and by using excessive force to effect his arrest. At the close
of the evidence, the district court awarded judgment as a matter
of law in favor of Bodine on the issue of liability with respect
to the illegal entry claim. The court later instructed the jury
that it need not determine whether the troopers used excessive
force in arresting Bodine because their unlawful entry rendered
any use of force unreasonable. The jury then returned a verdict
in favor of the troopers on the unlawful arrest claim and, on the
remaining claims, awarded Bodine compensatory damages of $25,000,
an amount that was far below what he had sought. Bodine
appealed, arguing that the small award of damages was against the
weight of the evidence. The troopers cross-appealed, contending,
among other things, that the district court erred in granting
judgment as a matter of law in favor of Bodine on the illegal
entry claim and in framing its instructions regarding their
2
liability for damages stemming from their conduct. We hold that
judgment as a matter of law was improper in this case and that
the court's analysis of the issue of damages was incorrect. We
therefore reverse and remand for further proceedings.
I.
This case resulted from events that occurred in
December 1990. Bodine had custody of his three sons, but their
mother, Helen Knight, had visitation rights every other Saturday.
On December 21, Bodine failed to appear at a hearing in Delaware
Family Court to show cause why he should not be held in contempt
for violating a prior court order regarding visitation. Bodine
telephoned the court and said that "although he received notice
of the hearing . . . he had no intention of appearing . . . or
bringing the children with him. . . . " The court issued an
order holding Bodine in contempt and fining him $100. To make up
for visits that Knight had lost as a result of Bodine's conduct,
the court ordered that the children be turned over to her for
visitation at 8 a.m. at the Smyrna, Delaware, police station on
the next three Saturdays. The order further provided:
Any police agency is authorized to
assist Ms. Knight in securing Mr. Bodine's
compliance with this order upon being
presented with a certified copy thereof.
Should police assistance again become
necessary to secure the Court ordered
visitation, Ms. Knight is specifically
authorized to enter upon the property of Mr.
Bodine in the company of a police officer to
receive her children.
Id. at B-12.
3
On the next Saturday, December 29, Bodine did not bring
the children to the Smyrna police station at 8 a.m., as required
by the order, and Knight sought the assistance of the Delaware
State Police. At some time between 8:10 a.m. and 8:20 a.m.,
Knight and three state troopers, James Warwick, Richard Frunzi,
and Philip Pitt, arrived at Bodine's house. Bodine observed the
police cars approach the house. He testified that he thought
they were there to enforce the visitation order, but he said that
he was surprised that they had come because he and Knight had
customarily given each other "a half-hour leeway" in turning over
the children.
Trooper Warwick approached the house. Warwick
testified that the Family Court order had previously been
circulated to the members of his troop, that "Harry Bodine and
the whole custody dispute" was a matter of "officer safety
concern" for "the entire troop," and that a memorandum concerning
the matter had been distributed to the troopers. He also stated
that he was "cautious" as a result of two prior visits to the
Bodine residence, one for the purpose of executing a warrant for
Bodine's arrest and the other in connection with the custody
dispute. On one of those occasions, Warwick said, Bodine had
told him "something to the effect that" if the police ever tried
to arrest him, "it [was] not going to happen" and he was "not
going to let [them] arrest [him]." According to Warwick, Bodine
also said that if the police came to his house, they were "going
to pay." As a result of these experiences, Warwick said that he
regarded Bodine as "unstable" and "very violent."
4
The troopers walked to the front door and knocked, but
Bodine told him to go to the back because a Christmas tree was
blocking the front door. They then walked to the back door and
knocked again. After Bodine opened the door, he and Warwick
spoke. What happened from this point on was the subject of sharp
dispute. According to Warwick, the following occurred. Warwick
asked Bodine why the children had not been brought to the police
station by 8 a.m. as required by the court order, and Bodine
responded that he had until 8:30 a.m. Bodine was raising his
voice, his eyes were twitching, and his lips were trembling.
These signs caused Warwick concern. Warwick told Bodine to have
the children ready in five minutes, and Bodine said, "I will have
them ready when I feel like it." Warwick was leaning forward at
the doorway, and he wanted to continue to talk to Bodine to calm
the situation, but Bodine slammed the door and tried to hit
Warwick in the face with it. Warwick jumped back and heard
Bodine "fiddling around with the door" on the inside. It sounded
to Warwick as if Bodine was trying to lock the door, so Warwick
grabbed the doorknob, pushed the door open, and entered the
house, followed by Troopers Pitt and Frunzi.
Warwick advised Bodine that he was under arrest and
attempted to grab Bodine's right arm, but Bodine pulled away.
Warwick then grabbed Bodine's right arm and tried to handcuff
him, but Bodine pulled away again, and they wrestled to the
floor. Pitt then grabbed Bodine's right arm and put his knee and
shin against Bodine's back in order to restrict his movements and
5
handcuff him. The troopers handcuffed Bodine, assisted him to
his feet, and removed him from the house.
Bodine, the woman with whom he was then living, and the
children who testified for him gave a very different account of
these events. According to Bodine, when he opened the back door,
he immediately told Warwick that the children would be ready in
five minutes, and Warwick responded, "Okay, you have five
minutes." After closing the door "firmly" because it was old and
swollen, Bodine walked away, but Warwick forcibly opened the
door, hitting Bodine in the back and knocking him off balance.
Warwick immediately grabbed Bodine's arms from behind and threw
him around the kitchen--from the table to the counter to the
floor--while Bodine offered no resistance. Bodine began to
scream with pain, and he felt as if his arms were being broken.
When Bodine was thrown to the floor, Pitt came down on
Bodine's back with his knee. While Warwick held Bodine's arms,
Pitt placed his knee against the upper portion of Bodine's back
and pressed Bodine's head to the floor. At this point, Bodine
heard his neck crack. Bodine was then raised by the troopers,
handcuffed, and escorted to the police station. He was
subsequently convicted in state court for the crimes of menacing
and resisting arrest.
After his arrest, Bodine was diagnosed as having
serious back injuries, and he eventually underwent three
operations. Bodine testified that he suffered great pain, and
the evidence showed that he was completely unable to work for
some time. In addition, he introduced expert testimony that his
6
injuries would permanently restrict the type of work that he was
able to do and the number of years that he would be able to work.
According to an economist who testified for Bodine, his total
lost wages during his lifetime were between $576,000 and
$1,000,000. There was also evidence, however, that Bodine had
back problems before his arrest; that he did not report hearing
his neck "crack" during some of his initial medical examinations
after his arrest; and that his injuries were exacerbated by his
failure to follow the regimen that his physician prescribed.
In December 1992, Bodine filed this action in district
court against Troopers Warwick, Pitt, and Frunzi, as well as
several other defendants who are no longer in the case. In
February 1994, the case proceeded to trial on three theories of
liability: illegal entry, unlawful arrest, and excessive use of
force. At the end of the testimony, Bodine moved for judgment as
a matter of law on liability with respect to two of these
theories, illegal entry and excessive force. The court granted
this motion with respect to the illegal entry claim. Moreover,
the court reasoned that, once the troopers entered the house
illegally, "any harm or damage that they inflict[ed] on the
plaintiff as a result of the illegal entry [was] per se
unreasonable . . . and [Bodine] was entitled to damages for
that." 3/8/94 Tr. at E-31. The court added that it was
therefore unnecessary to submit the issue of excessive force to
the jury because the troopers were liable for all of the damages
that they caused even if they did not use excessive force. Id.7
The court also held that the troopers had waived the defense of
qualified immunity by not asserting it in their answer or at the
pretrial conference. Id. at E-37.
Before the case was submitted to the jury, Bodine
dismissed all claims against Trooper Frunzi for compensatory
damages, and the court awarded nominal damages of $1.00 against
all of the troopers on the illegal entry claim. In instructing
the jury, the court said that the plaintiff had to prove that the
defendants' "conduct" was the proximate cause of the injuries he
sustained. Id. at E-63. The court stated that it had already
determined that the troopers had entered the house illegally and
that the jury would therefore not be requested to decide that
question. Id. at E-68. The court likewise told the jury that it
was not required to determine whether the troopers had used
excessive force once inside the house because it had "determined
as a matter of law that once the officers entered the premises,
no amount of force would have been reasonable." Id. at E-70.
After receiving these instructions and deliberating,
the jury found that the troopers had not arrested Bodine
unlawfully, that their actions were the proximate cause of injury
to him, and that he was entitled to compensatory damages of
$25,000. Bodine moved for a new trial on the issue of damages,
but the court denied that motion. Bodine then appealed, and the
troopers cross-appealed.
II.
We will first discuss the issue of liability with
respect to Bodine's illegal entry claim. As noted, the district
8
court granted judgment as a matter of law in favor of Bodine on
this issue. In order for us to sustain this ruling, the
evidence, viewed in the light most favorable to the non-moving
parties, must have been insufficient to permit a reasonable jury
to find in their favor. See, e.g., Wittekamp v. Gulf & Western,
Inc., 991 F.2d 1137, 1141 & n.7 (3rd Cir.), cert. denied, 114 S.
Ct. 309 (1993); Billet v. CIGNA Corp., 940 F.2d 812, 815 (3rd
Cir. 1991). Under this standard, we hold that judgment as a
matter of law in favor of Bodine was improper. In addition,
contrary to the troopers' argument, we hold that judgment as a
matter of law in their favor on this claim was likewise
unwarranted. As we previously observed, there was sharply
conflicting evidence regarding the critical events in this case.
Depending on which version of the facts it believed, a reasonable
jury could have found for either side on the illegal entry claim.
Accordingly, that claim should have been sent to the jury.
In considering the legality of the troopers' entry into
the Bodine residence, we begin with the terms of the order of the
Delaware Family Court, which is important both with respect to
what it does and does not authorize. We read the order as giving
the troopers the authority to effect an involuntary transfer of
the children from Bodine to Knight for the purpose of
implementing Knight's visitation rights and to enter on Bodine's
property for this purpose, but we do not read the order as giving
the troopers the authority to enter the Bodine residence
9
unannounced.0 In other words, we view the order as giving the
troopers authority similar for present purposes to that conveyed
by an ordinary search or arrest warrant. Such a warrant would
authorize an executing officer to enter the property where the
search or seizure was to occur but would not confer "no knock"
authority unless the warrant so indicated. An ordinary warrant
is not construed as conferring such authority, and we do not so
construe the court order involved here. We simply do not see
anything in the order that supports that construction. Moreover,
the troopers have not brought to our attention any authority for
the proposition that the family court judge had the authority
under state law to issue a "no knock" order, and even if he had
such authority, it is not apparent that he had a factual basis
for authorizing an unannounced entry at the time when the order
was issued.
Since the family court order conferred authority
similar to that of an ordinary search or arrest warrant, the
troopers' authority to enter the Bodine residence in carrying out
the mandate of that order was similar to that of an officer
executing an ordinary warrant. Last term, in Wilson v. Arkansas,
115 S. Ct. 1914 (1995), the Supreme Court addressed the question
whether there are circumstances in which the Fourth Amendment
0
If we were called upon to decide whether the troopers have
qualified immunity for the entry, we would ask whether a
reasonable officer could have interpreted the order as granting
the authority to enter unannounced. But since the district court
held that the troopers had waived this defense and they have not
challenged that ruling on appeal, we do not address the issue of
qualified immunity.
10
requires that officers knock and announce their presence before
entering a dwelling for the purpose of making an otherwise lawful
seizure or search. After tracing the acceptance of the knock-
and-announce rule by common law courts, the Court held that
"[g]iven the longstanding common-law endorsement of the practice
of announcement, we have little doubt that the Framers of the
Fourth Amendment thought that the method of an officer's entry
into a dwelling [is] among the factors to be considered in
assessing the reasonableness of a search or seizure." Id. at
1918. However, the Court added:
This is not to say, of course, that every
entry must be preceded by an announcement.
The Fourth Amendment's flexible requirement
of reasonableness should not be read to
mandate a rigid rule of announcement that
ignores countervailing law enforcement
interests.
Id. The Court noted some of the circumstances under which the
common law did not require officers to knock and announce, and
among these were "circumstances presenting a threat of physical
violence." Id. at 1918-19.
The Supreme Court's decision in Wilson was anticipated
in large part by our decision in United States v. Nolan, 718 F.2d
589 (3rd Cir. 1983). In that case, we held that there are
circumstances in which the Fourth Amendment requires officers to
knock and announce. Id. at 600-02. "We suggested that the
Fourth Amendment does not impose a specific rule governing forced
entries but rather imposes a general requirement of
reasonableness, informed by the goals of preventing undue
11
invasion of privacy and destruction of private property." United
States v. Stiver, 9 F.3d 298, 302 (3rd Cir. 1993), cert. denied,
114 S. Ct. 1115 (1994). Moreover, in United States v. Kane, 637
F.2d 974, 978 (3rd Cir. 1981), in discussing the similar but not
necessarily identical knock-and-announce rule0 codified in 18
U.S.C. §31090, we held that "a police officer's reasonable belief
that announcement might place him or his associates in physical
peril constitutes [an] 'exigent circumstance' . . . that
justifies non-compliance with the announcement provisions of the
statute." See also United States v. Jewell, 60 F.3d 20, 23 (1st
Cir. 1995); United States v. Maxwell, 25 F.3d 1389, 1395 (8th
Cir.), cert. denied, 115 S. Ct. 610 (1994); United States v.
Buckley, 4 F.3d 552, 558 (7th Cir. 1993), cert. denied, sub nom.
Herman v. United States, 114 S. Ct. 1084 (1994). In light of
these authorities, it seems clear that if the troopers in this
case had a reasonable belief that they were facing a "threat of
physical violence" when Bodine closed the door after speaking
with Warwick, the Fourth Amendment did not require them to knock
and announce their presence before entering the house.
A reasonable jury, viewing the evidence in the light
most favorable to the troopers, could have found the following.
Warwick, the officer who opened the door and entered first, knew
that domestic relations cases are dangerous, that Bodine had
previously resisted allowing visitation by Knight to the point of
0
See Stiver, 9 F.3d at 301-02; Nolan, 718 F.2d at 600.
0
As we noted in Stiver, 9 F.2d at 301-02, this statute applies to
federal officers. It is thus inapplicable here.
12
standing in contempt, that Bodine had again failed to comply with
a court order for visitation that morning, that the visitation
dispute regarding Bodine's children was a matter of "officer
safety concern" for his entire troop, and that Bodine had
previously threatened that if the police came to his house again
they would have to "pay" and that he would not let them arrest
him. When Bodine answered the back door, he was surly and
uncooperative. In response to Warwick's demand that the children
be ready in five minutes, Bodine said that he would have them
ready "when he felt like it." Bodine gave "nonverbal signs" of
considerable emotion: he raised his voice; his eyes twitched; and
his lips trembled. He slammed the door and attempted to hit
Warwick with it in the face. And after Bodine did this, Warwick
heard sounds that led him to suspect that Bodine was trying to
lock the door. Based on these facts, a reasonable jury could
conclude that the officers were justified in believing that
Bodine was planning to use physical violence so as to avoid
complying with the visitation requirement.
The troopers would have a stronger case if there was
evidence in the record that Bodine had access to firearms or
other lethal weapons in the house, but the absence of such
evidence is a matter for the trier of fact to weigh. The parties
have not brought to our attention any evidence that the troopers
had a basis for being certain that there were no such weapons in
the house, and the average house contains implements, such as
knives and tools, that can be wielded with dangerous effect.
Thus, the evidence, if viewed in a light favorable to the
13
troopers, was adequate to support a verdict in their favor on the
illegal entry claim.
By contrast, if the jury believed Bodine's very
different version of the events, the troopers lacked any
reasonable basis for fearing physical violence from Bodine. Under
this version of the events, Bodine did not turn over the children
at 8 a.m. due to misunderstanding, offered to have them ready in
five minutes, and did not slam the door in Warwick's face, but
merely shut it "firmly" because it was swollen and difficult to
close. Consequently, we hold that the issue of liability on the
illegal entry claim should have been submitted to the jury.
In arguing that the district court erred in granting
judgment as a matter of law for Bodine, the troopers rely, not
only on the danger that they allegedly faced, but also on what
they characterize as several other "exceptions" to the knock-and-
announce rule: the "useless gesture,"0 fear-of-flight,0 and "hot
pursuit"0 exceptions. In view of the possibility that Bodine's
illegal entry claim will be retried on remand, these arguments
warrant comment. Under Wilson and Nolan, it does not appear to
be strictly correct to view the Fourth Amendment as containing a
knock-and-announce rule with certain fixed "exceptions." Instead,
those cases interpret the Fourth Amendment as containing a
flexible requirement that all searches and seizures be
0
Citing Ker v. California, 374 U.S. 23, 47 (1963)(Brennan, J.,
dissenting in part); Kane, 637 F.2d at 978; United States v.
Singleton, 439 F.2d 381, 385-86 (3rd Cir. 1971).
0
Citing Ker, 374 U.S. at 74 (Brennan, J., dissenting); Kane, 637
F.2d at 978.
0
Citing Santana v. United States, 427 U.S. 38 (1976).
14
"reasonable" and regard an officer's failure to announce his or
her presence before entering a dwelling to carry out an otherwise
lawful search or seizure as a factor to consider in assessing
reasonableness. See Wilson, 115 S. Ct. at 1918; Nolan, 718 F.2d
at 600-02.
With this understanding in mind, we think that the
facts on which the troopers rely in advancing their "useless
gesture" argument -- Bodine's knowledge that the troopers had
already knocked twice and were outside his house -- are relevant
but not dispositive in determining whether their entry was
lawful. Because Bodine had seen the troopers and knew that they
were outside, some of the dangers often associated with
unannounced, forcible entries -- for example, the danger that the
troopers would be mistaken for burglars0 -- were diminished. On
the other hand, other dangers that might have been avoided by
knocking and announcing -- such as the danger that property would
be destroyed and that an occupant of the house would reflexively
react with violence0 -- were present.
By contrast, the possibility that Bodine might have
fled finds no support in the evidence and is therefore not a
relevant factor to consider in judging the reasonableness of the
troopers' conduct. Indeed, the troopers themselves testified
that they did not think that Bodine was going to flee.
0
See Sabbath v. United States, 391 U.S. 585, 589 (1968); Kane,
637 F.2d at 977.
0
See Nolan, 718 F.2d at 602.
15
In invoking the "hot pursuit" exception, the troopers
rely on United States v. Santana, 427 U.S. 38 (1976). They note
that Bodine committed the offense of menacing when he slammed the
door and tried to hit Warwick, and they argue that Warwick was in
"hot pursuit" of Bodine to arrest him for this offense when he
entered the house. Although Santana concerned a somewhat
different question from the one presented by this case, we think
that it has some (limited) relevance here. Unlike Wilson,
Santana did not involve the authority of officers with a warrant
to enter a dwelling unannounced to execute the warrant. Instead,
Santana involved the authority of officers to enter a dwelling to
make a warrantless arrest. As the Supreme Court later held in
Payton v. New York, 445 U.S. 573 (1980), the Fourth Amendment
prohibits the police from making a warrantless and nonconsensual
entry into a suspect's house in order to make a routine felony
arrest, but officers may make a warrantless arrest in a public
place. See United States v. Watson, 423 U.S. 411 (1976). In
Santana, the police tried to make a warrantless drug arrest
supported by probable cause in a public place, but the suspect
retreated into her house, and the police pursued and arrested
her. Concluding that this did not violate the Fourth Amendment,
the Supreme Court held that when officers attempt to make a
warrantless arrest in a public place but the suspect flees into a
dwelling the officers do not need a warrant to pursue the suspect
and carry out the arrest. The Court noted the need for prompt
action to prevent the destruction of evidence (id. at 43), and
although the Court did not expressly refer to the authority of
16
the police to enter the house without announcement, that
authority was certainly implicit in the court's holding.
Although, as we noted, Santana concerned a somewhat
different question from that presented here, we have no doubt
that, when the police attempt to make an arrest with a warrant in
a public place and the suspect flees into his or her home and
closes the door, it is reasonable for the police to pursue the
suspect inside without stopping and announcing their presence and
intentions at the threshold. This is so for several reasons.
Since the suspect knows what the police are attempting to do,
little purpose would be served by knocking and announcing. In
addition, in many cases, as in Santana, there will be a danger
that evidence will be destroyed if there is delay, and there will
sometimes be a danger of flight or a threat of harm to the
officers as well.
In this case, as previously noted, the troopers' fear
for their safety is potentially an important factor, but the risk
of flight is not supported by the evidence. Nor is there any
suggestion that delay might have allowed Bodine to destroy
evidence. As for the argument that an announcement was
unnecessary because Bodine must have known that Warwick was
trying to arrest him for menacing, while we cannot say that the
troopers should not be permitted to argue this theory to the jury
at a retrial if they wish to do so, it appears to have scant
17
support in the record.0 Warwick did not try to arrest Bodine
before he slammed the door and retreated inside (if Bodine can be
said to have done so); indeed, it was not until Bodine slammed
the door and thus menaced Warwick that Warwick had grounds to
arrest him. Thus, it is not at all clear that Bodine knew, prior
to Warwick's entry, that Warwick was seeking to arrest him for
menacing.
In sum, we hold that the record in this case did not
support judgment as a matter of law for either side on the
illegal entry claim. Only after the jury has resolved the
disputed factual issues regarding the relevant factors that we
have noted can it be determined whether the troopers' unannounced
entry was reasonable.
III.
We now turn to Bodine's excessive force claim. If this
claim is viewed separately from the illegal entry claim, it seems
clear that the jury should have been permitted to decide whether
the troopers' use of force was excessive. Under the troopers'
version of the events, it was not. According to the troopers,
they were simply trying to handcuff and arrest Bodine, but he
struggled to resist arrest. By contrast, under Bodine's version,
the troopers' conduct -- throwing him around the kitchen and
0
Judge Becker finds no support in the record for this theory and
no basis for concluding that Bodine knew prior to the officers'
entry that they were seeking to arrest him.
18
causing his neck to "crack" while he offered no resistance--was
plainly excessive.
The district court, however, did not allow the jury to
decide which account should be believed, Instead, the court told
the jury that it did not need to decide this question because,
since the officers had entered the house illegally, any use of
force was unlawful, and the officers were liable for all of the
harm that ensued. This analysis was wrong for two independent
reasons.
First, as we explained in part II of this opinion, the
record did not permit judgment as a matter of law on the illegal
entry claim, and accordingly the court's conclusion that the
entry was illegal was premature. Second, even if the entry was
unlawful, this would mean, under basic principles of tort law,
that the troopers would be liable for the harm "proximately" or
"legally" caused by their tortious conduct (i.e., by their
illegal entry). See, e.g., Restatement (Second) of Torts §§ 431
and 871 cmt. l (1965 & 1979). They would not, however,
necessarily be liable for all of the harm caused in the
"philosophic" or but-for sense by the illegal entry. See, e.g.,
Restatement (Second) of Torts §§ 431 and cmt. a (1965). Among
other things, they would not be liable for harm produced by a
"superseding cause." See, e.g., Restatement (Second) of Torts
§§440-453 (1965). And they certainly would not be liable for
harm that was caused by their non-tortious, as opposed to their
19
tortious, "conduct," such as the use of reasonable force to
arrest Bodine.0
A simple hypothetical will illustrate the importance of
these distinctions in a case such as this. Suppose that three
police officers go to a suspect's house to execute an arrest
warrant and that they improperly enter without knocking and
announcing their presence. Once inside, they encounter the
suspect, identify themselves, show him the warrant, and tell him
that they are placing him under arrest. The suspect, however,
breaks away, shoots and kills two of the officers, and is
preparing to shoot the third officer when that officer disarms
the suspect and in the process injures him. Is the third officer
necessarily liable for the harm caused to the suspect on the
theory that the illegal entry without knocking and announcing
rendered any subsequent use of force unlawful? The obvious
answer is "no." See George v. City of Long Branch, 973 F.2d 706(9th Cir. 1992), cert. denied, 113 S. Ct. 1269 (1993). The
suspect's conduct would constitute a "superseding" cause, see
Restatement (Second) of Torts § 442 (1965), that would limit the
officer's liability. See id. § 440.
0
In reaching the conclusion that the officers' illegal entry
rendered any later use of force unreasonable, the district court
relied on Schwab v. Wood, 767 F. Supp. 574, 585 (D. Del. 1991),
which held that officers who detain a suspect without a
reasonable suspicion are liable (unless shielded by qualified
immunity) for harm caused by the use of any amount of force in
effectuating that detention. We find this holding questionable
for reasons similar to those discussed in text. Officers who
detain a suspect unlawfully should be liable for the harm
proximately caused by their tortious detention, but this will not
necessarily include all harm resulting from the otherwise
reasonable use of force to carry out the detention.
20
If at a retrial in this case the jury decides that the
troopers' entry was unlawful, it will be necessary to determine
how much of the injury suffered by Bodine was "proximately" or
"legally" caused by the illegal entry, and we express no view on
this question at this time. We merely emphasize that this
determination must be made and that the illegal entry and
unlawful force claims must be kept separate. Thus, if the
troopers are found to have entered the Bodine residence
illegally, they should be held liable for the harm proximately
caused by the illegal entry. Similarly, if the troopers are
found to have used unlawful force, they should be held liable for
the harm proximately caused by this use of force. The harm
proximately caused by these two torts may overlap, but the two
claims should not be conflated.
21
IV.
For these reasons, the judgment of the district court
is reversed, and the case is remanded for further proceedings.
Each party is to bear his own costs.
22