Smith v. Marasco

Full title: ESTATE OF ROBERT CECIL SMITH, et al., Plaintiffs, v. TROOPER JAMES…

Court: United States District Court, E.D. Pennsylvania

Date published: Mar 29, 2004

CIVIL ACTION NO. 00-5485 (E.D. Pa. Mar. 29, 2004)

Opinion

CIVIL ACTION NO. 00-5485

March 29, 2004

MEMORANDUM AND ORDER

FRANKLIN VAN ANTWERPEN, District Judge

I. INTRODUCTION

Plaintiffs Estate of Robert Cecil Smith, Pauline Smith, Dana Smith, and Wanda Smith filed a Complaint against certain members of the Pennsylvania State Police following the death of Robert Cecil Smith in 1999. The Complaint alleged violations of Robert Cecil Smith's First, Fourth, and Fourteenth Amendment rights, pursuant to 42 U.S.C. § 1983, and included a wrongful death claim, intentional infliction of emotional distress claim, and a survival action under state law. In an Opinion and Order dated January 11, 2002, this court granted Defendants' Motion for Summary Judgment and dismissed all federal claims with prejudice. See Estate of Smith v. Marasco, 227 F. Supp.2d 322 (E.D. Pa. 2002). We also dismissed all state law claims without prejudice to Plaintiffs' right to pursue those claims. Id. On appeal, the Third Circuit Court of Appeals affirmed this decision as to the dismissal of Plaintiffs' First Amendment retaliation claim, Fourth Amendment unreasonable seizure and malicious prosecution claims and substantive due process cover-up and mishandling of a corpse claims. See Estate of Smith v. Marasco, 318 F.3d 497 (3d Cir. 2003). However, the Third Circuit reversed the dismissal of Plaintiffs' state-created danger, excessive force, unreasonable search, and state law claims and remanded the matter to us.

We have given Plaintiffs additional discovery as directed by the Third Circuit. Before us now is Defendants' Motion for Summary Judgment on the grounds that they are immune from suit, that certain Defendants did not participate directly in the alleged wrongful activity, and that the court need not exercise supplemental jurisdiction over state law claims. Prior to the filing of this Motion, Plaintiffs agreed to voluntarily dismiss thirty-four individual Defendants from this suit. Thus the remaining twelve Defendants are Troopers James Marasco, Nicholas Scianna, Thomas Rodriguez, Andrew L. Wenger, Thomas Weaver; Corporal Mervin Rodriguez; Captain Michael Marcantino; Corporal Thomas Gregory Hall; Corporal Martin Carbonell; Corporal Glenn C. Domon; Lieutenant Frank L. Fetterolf; and Corporal A.J. Krawczel.

II. Statement of Facts

We briefly summarize the facts in this case and incorporate by reference the more extensive Factual Background contained in our prior opinion. See Smith, 227 F. Supp.2d 322.

Robert Smith ("Smith") and his neighbor Michael Shafer ("Shafer") had an ongoing feud which had resulted in numerous complaints to police. On one occasion Shafer told police that Smith had shot out the lights on his house and police saw bullet holes in the home. (Marasco Dep. at 26.) Smith also made ugly racial statements to Shafer. (T. Rodriguez Dep. at 20.) Through these interactions with police, Plaintiffs allege that the Pennsylvania State Police knew that Smith suffered from Post Traumatic Stress Disorder ("PTSD") as a result of his service in Vietnam, that he had coronary disease, suffered from hypertension, and was required to be free from stressful situations.

On the evening of July 10, 1999, Shafer called police at approximately 10:30 p.m. to complain that Smith was shining a light onto his property and/or that Smith had shot out lights on Shafer's property. Pennsylvania State Troopers James Marasco ("Marasco") and Nicholas Scianna ("Scianna"), both members of Troop L, arrived at Shafer's house to investigate the matter. After speaking with Shafer, Marasco and Scianna went to Smith's house and knocked on the door. When no one answered, they contacted Corporal Mervin Rodriguez ("M. Rodriguez") at the barracks, who advised them to telephone the Smith residence and, if no one answered, leave. A call was placed to the residence, but no one answered. Instead of leaving, however, Marasco and Scianna went around to the back of the house to search for Smith. At that point, they did not have a search or arrest warrant.

While in the backyard of Smith's property, Scianna noticed a small red light in one of the windows in Smith's house. Although Scianna first thought it to be a video camera, when Marasco saw it shining on Scianna's body, both believed it to be a laser sight from a firearm. At that point, Marasco and Scianna retreated to their cars and called for back-up. In response to their call, M. Rodriguez and Trooper Thomas Rodriguez ("T. Rodriguez") arrived at the scene.

When further attempts to contact Smith by phone and over a public address system failed, M. Rodriguez called Lieutenant Fetterolf ("Fetterolf'), who then ordered a request for assistance from the State Police Special Emergency Response Team ("SERT"). SERT was then activated.

Prior to SERT's arrival, the police officers already at Smith's house began to form a perimeter around the house. During that time, M. Rodriguez and T. Rodriguez observed a man they believed to be Smith walking from the house to a shed in the backyard. When SERT arrived, approximately 30 members of their team, dressed in riot gear and carrying various weapons, took over the task of sealing the perimeter.

Sometime in the early morning hours of Sunday, July 11, 1999, Trooper Thomas Weaver ("Weaver"), a criminal investigator who had been called to Smith's house, filed criminal charges against Smith for aggravated assault upon Scianna, simple assault, and reckless endangerment of a person. Trooper Andrew Wenger ("Wenger") obtained a search warrant for Smith's residence for "[a]ny and all firearms, including handguns, shotguns, rifles, or any combination thereof, including those equipped with `laser sights' or those capable of being equipped with such, as well as any instrument, device and/or object capable of projecting a laser-type beam visible to the naked eye." Pursuant to the warrants, SERT entered and searched the house and shed, using rocks, distraction devices, and tear gas.

SERT could not locate Smith during their search of the house and shed. While they recovered nine weapons, including several handguns with scopes, no laser sighted weapons were found. The team did, however, find a video camera, Smith's wallet, identification, credit cards, cash, keys, and medication for his recent bypass surgery. SERT then conducted a search of the wooded area adjacent to the home, including Smith's hunting hideout, which they observed from a helicopter. The team was unable to find Smith and the search was eventually called off. By midday on July 11, 1999, the officers left the scene and the complaint against Smith was withdrawn.

The parties diverge on what happened in the next seven days. According to Defendants, a thorough search and investigation into Smith's whereabouts was conducted. Plaintiffs allege that Defendants did not make a sustained effort to locate Smith and that they denied Plaintiffs' request to use search dogs. On July 18, 1999, Smith's body was found by his friend, Alan Achey ("Achey"), in the wooded area approximately 200-300 yards from Smith's home. Forensic pathologist Sanford Edberg estimated that Smith died sometime between 11:50 a.m. and 10:00 p.m. or 11:00 p.m. on Sunday, July 11, 1999, probably from a heart attack caused by the stressful events of the prior evening. This is an opinion based upon hindsight, and a heart attack can of course be difficult to predict even for a medical professional.

III. Standard of Review

The court shall render summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248. All inferences must be drawn and all doubts resolved, in favor of the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Gans v. Munduy, 762 F.2d 338, 341 (3d Cir. 1985).

On a motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. Id. at 321 n. 3 (quoting Fed.R.Civ.P. 56(e)). See First Nat'l. Bank of Pa. v. Lincoln Nat'l. Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson, 477 U.S. at 248-249.

IV. Discussion

A. Eleventh Amendment Immunity

Defendants argue that they are immune from § 1983 suits brought against them in their official capacities. In Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71, the Supreme Court held that state officials are immune from § 1983 suits because although they are literally persons, suits against them are effectively suits against the state itself. Since a state is not a person officials are therefore immune from suit under § 1983. Additionally, the Supreme Court has held that under the Eleventh Amendment, state officials are immune from suits unless they are being sued in their individual capacities for prospective or injunctive relief. See Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997). Thus, Defendants cannot be sued in their official capacities. However, as we noted in our previous opinion in this case, Defendants may still be sued under § 1983 in their individual capacities. See Smith. 227 F. Supp.2d at 338, n. 11.

B. Personal Involvement Requirement in § 1983 Claim

Defendants argue that an individual can only be liable under § 1983 if he personally "participated in violating [another's] rights, or . . . directed others to violate them, or . . . had knowledge of and acquiesced in his subordinates' violations." Baker v. Monroe Township, 50 F.3d 1186, 1190-91 (3d Cir. 1995). Specifically, they argue that Marcantino, Marasco, Scianna, Weaver, Wenger, M. Rodriguez, T. Rodriguez, Carbonell, Domon, and Krawczel lacked sufficient personal involvement to be liable for some or all of the claims alleged by Plaintiffs.

1. Marcantino as Supervisor

With regard to Marcantino, Defendants argue that he lacked the requisite personal involvement in the actions alleged by Plaintiffs because he was away camping at the time. At most, Defendants argued, he was updated by phone during the course of events by Fetterolf. In response, Plaintiffs argue that as the highest ranking officer of Troop L, Marcantino is subject supervisory liability. Under the theory of supervisory liability, an individual can be liable under § 1983 even if he was not physically present during the alleged violations, as long as he acquiesced or had personal knowledge of the alleged violation. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990).

According to Marcantino's deposition, he first received a phone call from Fetterolf sometime between 6:00 a.m. and 8:00 a.m. on the morning of July 11^th. Fetterolf informed him that SERT had been called to the Smith residence. (Marcantino Dep. at 34-35.) Fetterolf also informed Marcantino that SERT had been called in response to an issue regarding a laser sight. (Id.) Marcantino denied expressing any opinion as to the appropriateness of calling SERT to the scene or giving any type of direction to Fetterolf. (Id. at 39, 45.) Marcantino received a second phone call from Fetterolf after SERT entered the Smith shed and home and a third call indicating that SERT was standing down. (Id. at 45.) Prior to the events of July 10^th and 11^th, Marcantino stated in his deposition that he was aware that Smith might have been taking medication for a heart condition, but was not certain why. (Id. at 49). However, he stated that he was unaware of any emotional or psychological problems Smith might have had. (Id. at 50).

Fetterolf's deposition presents a somewhat different account of the phone conversations with Marcantino. According to Fetterolf, Marcantino told him "we were doing the right thing" when Fetterolf called him prior to SERT's entry and use of tear gas in the shed. (Fetterolf Dep. at 57.) Additionally, Fetterolf stated that Marcantino asked Fetterolf to keep him informed of the situation. (Id.) Taking the facts in a light most favorable to Plaintiffs, we must accept at this stage that Marcantino had knowledge of the actions taken by the officers at the scene and acquiesced in them as a supervisor. Thus we find that for purposes of this Motion for Summary Judgment, Marcantino had sufficient personal involvement to be held liable at a trial under § 1983.

2. Scianna and Marasco `s Backyard Search and Participation in Forming a Perimeter

As to Scianna and Marasco, Defendants argue that their participation lacked sufficient personal involvement in Plaintiffs' alleged constitutional violations, with the exception of the unreasonable search claim, because it consisted of merely responding to Shafer's complaint, knocking on Smith's door, going into Smith's backyard, and retreating to their cars after they were targeted with a laser light. Plaintiffs, however, urge that § 1983 violations should be analyzed according to common law tort theories, Heck v. Humphrey, 512 U.S. 477, and that under the theory of proximate cause, Scianna and Marasco's actions put the wheels in motion for the subsequent constitutional violations for which they can be held liable. Causation is a two step analysis in which we must first inquire whether, but for an individual's breach of legal duty, the harm would not have occurred and second, that the breach caused the harm. See Olsen v. Correiro, 189 F.3d 52 (1st Cir. 1999). Thus we must first determine whether Scianna and Marasco breached a legal duty to Smith by entering his backyard.

On appeal, the Third Circuit noted that whether a decision to go to the backside of a home without a warrant was reasonable depends upon the specific facts surrounding the officers' investigation. Smith, 318 F.3d at 520-21. In other words, we cannot presume that a police officer is justified in going around to the back of a house when he does not receive an answer after knocking on the front door. There must be circumstances present which would make it reasonable for police officers to expect that the person they seek might be elsewhere on the property within the curtilage.¹ Id., citing United States v. Dauost, 916 F.2d 757, 758 (1st Cir. 1990). Alternatively, a warrantless search might be justified under exigent circumstances, such as a highly intrusive breach of a neighbor's peace. See United States v. Rohrig, 98 F.3d 1506, 1518-25 (6th Cir. 1996). In Rohrig, the court clearly held that a warrantless entry into the complainant's home to locate and abate a nuisance was justified because numerous neighbors had complained about loud music coming from the home late at night. Id.

1 We have given Plaintiffs additional discovery, but there is still no proof that the officers were in fact within the curtilage rather than merely on the property. It is Plaintiffs' burden to show this and since they have not met it, we would also find the backyard entry reasonable for this reason.

In the instant case, Scianna and Marasco went to Smith's house that night to investigate Shafer's complaint that Smith was shining an intense light onto Shafer's home and that Smith had installed a "backboard" to prevent the intense light from shining onto his own property. (Marasco Dep. at 50, 63.) Marasco and Scianna had visited Smith's home on a previous occasion to investigate the installation and use of the intense light. (Scianna Dep. at 20). At that time, Smith invited them into the house and showed them a screened in back porch where he said he sometimes sat and where he was disturbed by lights on Shafer's property. (Id. at 28.) When Smith did not answer their knocks on his front door on the night of July 10th, Scianna went around to the back of the house. (Id. at 43.) The decision to do so seems reasonable since the officers knew there to be a back porch that Smith sometimes sat on and it is conceivable that if Smith was sitting there, he might not have heard the knocking on the front door. Marasco and Scianna's belief that Smith was home was strengthened by the fact that there were lights on in the home, the garage door was open and there were vehicles in the driveway. (Scianna Dep. at 51, 67; Marasco Dep. at 93.) Thus we find that under these facts there was a reasonable expectation of finding Smith at the back of the house. Moreover, entrance into the backyard was pursuant to exigent circumstances similar to those inRohrig, where the purpose of the search was also to abate a nuisance. While Marasco and Scianna knew where the nuisance was coming from, it was necessary to locate Smith in order to turn off the lights that were shining on Shafer's properly late that night. The combination of Scianna and Marasco's expectation that Smith might be at the back of his home and the need to abate Smith's intrusive breach on his neighbor's peace lead us to find that the entrance into Smith's backyard without a warrant was reasonable and that therefore Marasco and Scianna did not breach any legal duty to Smith by doing so. Since they did not breach a legal duty to Smith by entering his backyard, we need not decide whether the entrance into the backyard put in motion a chain of the events that led to Smith's death. Having thus found that Marasco and Scianna did not proximately cause injury to Smith, we also find that they did not directly participate in violating Smith's constitutional rights by entering his backyard.

However, our examination of Marasco and Scianna's participation in the alleged § 1983 violations does not end here because Plaintiffs allege further acts of participation beyond entrance into the backyard. Plaintiffs argue that both officers were part of the perimeter established which caused Smith to be cut off from his home. Having examined Scianna and Marasco's depositions, we believe that their own statements show that their participation in securing the perimeter surrounding Smith's home is sufficient to allow Plaintiffs to proceed against them as to their excessive force and state created danger claims.

According to Scianna's deposition, after Marasco observed the red dot shining on Scianna, they moved their cars to the end of Smith's driveway and Marasco called for backup. (Scianna Dep. at 55). Both officers apparently waited behind their cars with their weapons drawn. (Marasco at 67). Some time after backup arrived, but before SERT arrived, Scianna indicated that he moved approximately 30 yards closer to the house in order to observe what appeared to be Smith entering the shed. (Id. at 65). During that time, Scianna had a shotgun with him. (Id. at 68.) When SERT arrived both officers were relieved from their positions. (Id. at 65, Marasco at 131.) At that point, Scianna was told he could leave, but he chose to sit and observe from the driveway. (Id. at 66.)

Marasco indicated in his deposition that after backup arrived, he moved his car closer to the house in order to bring the public address system closer. (Marasco Dep. at 121.) At that point in time, Marasco indicated that if Smith were not in the house, he would not have been able to get back into the house because of the positions taken up by the police officers. (Id. at 130.) Marasco stayed at this position in the driveway until he was relieved by SERT. (Id. at 131). Additionally, Marasco stated that prior to SERT's arrival, the perimeter of the house was secured in the sense that a person could not have entered or exited the home unobserved. (Id. at 135). The physical positions taken by Scianna and Marasco near the Smith home with their weapons drawn indicates that they actively participated in the forming of a perimeter which Plaintiffs allege constituted excessive use offeree and a state created danger. Thus Marasco and Scianna can not avoid suit on the grounds that they did not participate in these alleged constitutional violations. 3. Weaver, Wenger, and Marasco's Obtainment of the Search and Arrest Warrants

Defendants urge that Weaver, Wenger, and Marasco lacked sufficient personal involvement in the alleged constitutional violations because they merely applied for and obtained warrants to arrest Smith and search his home, respectively. As with Marasco and Scianna's search of Smith's backyard, Plaintiffs urge us to apply tort law principles and find that Weaver, Wenger, and Marasco's obtainment of arrest and search warrants proximately caused Smith's death because had they not obtained them, SERT would have left the scene and not conducted a search of the home. We believe this issue has been laid to rest because the Third Circuit found there was probable cause to obtain a search warrant. See Smith, 318 F.3d at 513 n. 7. Moreover, even if we were to find, as Plaintiffs allege, that these officers breached a legal duty to Smith by supplying misleading or false information in the application for the warrants, we cannot find that this breach was the proximate cause of injury to Smith.

Prior to obtaining the warrants, more than a few police officers had already arrived at the scene and secured the perimeter with their weapons drawn. Marasco stated in his deposition that from that point on, Smith would not have been unable to enter or exit his home unobserved. (Marasco Dep. at 130.) Additionally, numerous police cars were parked in front of Smith's house with their lights shining on it and a public address system was used repeatedly to call out to Smith. (Id. at 122-123.) Moreover, as Plaintiffs readily point out in their fact section, and Defendants do not dispute this, SERT was called to the scene prior to the procurement of the arrest and search warrants. Once upon the scene, SERT members, in riot gear and carrying weapons, took over the perimeter which had already been sealed by police officers already on the scene. Since these expressions offeree all took place before the procurement of the warrants, we fail to see how obtaining warrants after the fact would have caused injury to Smith. Furthermore, since it is undisputed that Smith was not in the house or shed at the time it was ultimately searched by SERT, it is unclear to us how the search could have been injurious to him. The facts, as asserted by both parties, simply do not support Plaintiffs' assertion that the obtainment of search and arrest warrants somehow precipitated the chain of events that led to the use of excessive force and a state created danger. Even if it is true, as stated in Plaintiffs' Brief in Opposition that the obtainment of the warrants was meant to justify actions which had already occurred, this would still not be a cause of those actions. Since, we find that Weaver, Wenger, and Marasco did not directly participate in the alleged constitutional violations, they cannot be liable under § 1983 for obtaining the arrest and search warrants.

4. M. Rodriguez

M. Rodriguez did not directly participate in the alleged constitutional violations, according to Defendants, because his actions merely consisted of responding to Marasco's call for backup, calling Fetterolf to request SERT assistance, making several attempts to contact Smith using a public address system, and observing and calling out to a figure he believed to be Smith in the backyard. Plaintiffs argue that according to M. Rodriguez's own deposition, he also ordered that police cars be driven up closer to the Smith home with their headlights on and ordered and participated in the formation of a perimeter around the home. (M. Rodriguez Dep. at 65-66.) As in the case of Marasco and Scianna, such conduct is sufficient to constitute direct participation in the excessive force and state created danger claims alleged by Plaintiffs. Thus we find that Plaintiffs are not barred from proceeding against M. Rodriguez. 5. T. Rodriguez

Defendants allege that T. Rodriguez did not directly participate in the alleged constitutional violations because he only responded to Marasco's call for backup and maintained a position at the end of the Smith driveway until SERT arrived. However, Plaintiffs argue that since T. Rodriguez was assigned as part of the secure perimeter, he directly participated in the use of excessive force and a state created danger. T. Rodriguez's deposition corroborates that he participated in forming the perimeter. (T. Rodriguez Dep. at 42). We believe that this action sufficiently constitutes direct participation.

6. Carbonell, Domon, and Krawczel

Defendants argue that Carbonell, Domon, and Krawczel lacked the requisite personal involvement in the alleged constitutional violations because their involvement was essentially administrative. As part of SERT, Defendants assert that Carbonnell assisted the SERT coordinator in the command post, but did not participate in any of the tactical decisions. Plaintiffs aver, however, that Carbonnell directly participated by advising Weaver that he needed to obtain an arrest warrant. Carbonell's deposition confirms this, but as we determined in the foregoing discussion, we do not believe that the procurement of the warrants proximately caused injury to Smith. On this basis, we do not find that Carbonnell directly participated in the alleged constitutional violations. Plaintiffs do not make any other affirmative assertions about Carbonnell's participation in the events of July 10^th and 11^th.

Domon, a leader of the SERT negotiation team, maintained a post log at the command post and tasked certain members of the negotiation team, according to Defendants. Plaintiffs do not offer any evidence to contradict this characterization of Domon's participation in the events of July 10^th and 11^th or to suggest that Domon participated in any other way. Domon's own deposition affirms that his role was limited to making a written record of various communications between the officers on the scene and, in one or two instances, relaying messages to the negotiation team.² Since Plaintiffs do not offer any evidence or argument to support their claim that keeping a log and relaying messages to the negotiation team proximately caused Smith injury, or that any of the events of that evening occurred at his direction, we find that Domon did not directly participate in Plaintiffs' alleged constitutional violations.

2 In Domon's deposition, he suggests the he might have received instructions to call the Smith residence and that he might have passed these instructions along to the negotiation team. (Domon Dep. at 76.)

Krawczel, also a member of the SERT negotiation team, was tasked with interviewing Smith's neighbor, Shafer, and speaking with the VA Hospital about Smith. Plaintiffs counter that Krawczel directly participated by collecting information from the VA Hospital regarding Smith's heart condition and flashbacks from combat in Vietnam and communicating this information to the Command Center. Armed with this knowledge, Plaintiffs argue that Krawczel, and those he informed, should have questioned the "activation plan." Plaintiffs cite numerous cases to support this assertion of "bystander liability." We are not convinced that this line of cases is applicable here. In all but one of the cases cited by Plaintiff, the alleged constitutional violation that the defendant should have intervened against was a physical beating by officers. See Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002); United States v. Koon, 34 F.3d 1416 (9th Cir. 1994); Mick v. Brewer, 76 F.3d 870 (10th Cir. 1996); Hale v. Townley, 19 F.3d 1068 (5th Cir. 1994); United States v. Reese, 2 F.3d 870 (1993); McHenry v. Chadwick, 896 F.2d 184 (6th Cir. 1990); Fundiller v. City of Cooper City, 777 F.2d 1436 (11th Cir. 1985);Webb v. Hivkel, 713 F.2d 405 (8th Cir. 1983); Ware v. Reed, 709 F.2d 345 (5th Cir. 1983); Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979); Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972); Jennings v. Davis, 476 F.2d 1271 (8th Cir. 1973); Harris v. Chanclor, 537 F.2d 303 (5th Cir. 1976); Yang v. Hardin, 37 F.3d 282 (7th Cir. 1996); United States v. McKenzie, 768 F.2d 602 (5th Cir. 1985).

In the instant case, Krawczel did not arrive at the scene until approximately 1:15 a.m. or 1:30 a.m., long after the police had formed a perimeter around the house using personnel with weapons drawn and police vehicles with bright lights parked close to the house. The Intelligence Log completed by Krawczel indicates that he did not contact the VA Hospital until 3:00 a.m. (SERT Call-out Intelligence Log, Attached to Krawczel Dep. as Ex. 1.) Thus he would not have learned of Smith's physical and mental conditions until after the police and SERT had initiated the alleged excessive force and state created danger. Thus Plaintiffs are limited to claiming that Krawczel's liability stems from the fact that once he realized Smith had heart disease and was susceptible to flashbacks, he failed to object to the continued presence of police officers and SERT. We do not believe that this situation is at all comparable to the situations in the cases cited by Plaintiffs, in which the damage caused by physically beating an individual is unquestionably foreseeable. But even if we were to conclude that this case law is applicable, we still find that Plaintiffs have failed to offer any evidence that but for Krawczel's failure to object, Smith would not have been harmed. Unless Krawczel actually had a realistic and reasonable opportunity to intervene, he cannot be held liable. See Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986). Krawczel was part of a negotiation team that was led by Domon and which was part of SERT, as commanded by Hall. Plaintiff has proffered no evidence to show that had Krawczel objected, Smith would not have died in the woods. While being an officer of a lower rank in and of itself does not excuse Krawczel from liability, Mensinger, 293 F.3d at 651, not having a realistic opportunity to halt perceived constitutional violations does.

7. Hall and Fetterolf

It is unclear to us whether Defendants also assert that Hall and Fetterolf did not directly participate in the alleged constitutional violations. Defendants do not discuss the actions of Hall and Fetterolf in the body of the section on direct personal involvement, but instead give a brief summary of their actions, without argument, in a footnote to that section. In the event that Defendants are making such an argument, we decide here that both Hall, as the SERT tactical supervisor for this particular operation (Hall Dep. at 6-7), and Fetterolf, as "Top Com" responsible for overseeing the entire operation at the Smith residence (Fetterolf Dep. at 42), had sufficient involvement in the alleged constitutional violations to be sued under § 1983.

C. Qualified Immunity

Having concluded that Wenger, Weaver, Carbonell, Domon, and Krawczel are not liable under § 1983 for lack of direct participation, we now address whether the remaining Defendants, Marasco, Scianna, T. Rodriguez, M. Rodriguez, Marcantino, Hall, and Fetterolf, are entitled to qualified immunity. The availability of qualified immunity depends upon the outcome of a two part inquiry. See Saucier v. Katz, 533 U.S. 194 (U.S. 2001). In the first part of this inquiry, the court must determine whether a constitutional right was violated by the alleged conduct of the officer. Id. at 201. If so, the court considers the second step of the inquiry by asking whether at that time the right was clearly established, such that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 201-2. In considering the second step, "the salient question . . . is whether the state of the law . . . [at the time of the incident] gave respondents fair warning that their alleged [action] was unconstitutional." Hope v. Pelzer, 536 U.S. 730, 741 (2002). The test is an objective one, and subjective arguments to the effect that the defendants desired to handle or subjectively believed that they handled an incident properly are irrelevant. See Beers-Capitol v. Whetzel, 256 F.3d 120 (3d Cir. 2001). Instead, "[t]he court should ask whether the [officials] acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be construed . . . after the fact." Hunter v. Bryant, 502 U.S. 224, 228 (1991). A right is clearly established if there is "some but not precise factual correspondence between relevant precedents and the conduct at issue." In re City of Philadelphia Litig., 49 F.3d 945, 970 (3d Cir. 1995). Defendants claiming immunity bear the burden of establishing "that no genuine issue of material fact remains as to the objective reasonableness of the defendants' belief in the lawfulness of his actions." Donahue v. Gavin, 280 F.3d 371, 378 (3d Cir. 2002).

Plaintiffs have alleged violations of Smith's Fourth and Fourteenth Amendment rights. Specifically they assert claims under the Fourth Amendment of excessive force and unreasonable search, and a state created danger under the Fourteenth Amendment. Since, in the context of our earlier discussion concerning the requirement of direct participation in a constitutional violation, we held that Marasco and Scianna cannot be liable for entering Smith's backyard without a warrant, we need not consider the availability of qualified immunity as to this charge. Thus we need only determine whether under the facts alleged there was excessive force and/or a state created danger and then whether each remaining Defendant would have known that his conduct was unlawful in this regard. 1. Excessive Force

The first constitutional violation alleged by Plaintiffs is the Fourth Amendment right against the use of excessive force. There is no question that the use of excessive force by police is inconsistent with the Fourth Amendment. Id. However, we must determine here whether the amount of foree used in this case was unconstitutional. In our prior opinion on this matter, we found that the decision to activate SERT and the tactics utilized by SERT were reasonable under the circumstances. See Smith, 227 F. Supp.2d at 344-45. We reached this decision taking into account the totality of the circumstances. See Graham v. Connor, 490 U.S. 386, 397 (1989). Specifically, our decision relied on the several prior interactions police had had with Smith,³ the officers' belief that Smith possessed weapons,⁴ had targeted them with a laser-sighted weapon, had fired shots at his neighbor's home in the past,⁵ and that, as an armed gunman, he posed a violent threat to the area around him. Additionally, the officers recollected that Smith had complained to them that the government was conspiring against him.⁶

3 Police had responded to complaints about Smith on several occasions. These interactions led to Smith being discussed in the roll call meetings that take place before each shift goes on duty at the police station and officers being advised not to go to the Smith home alone. (T. Rodriguez Dep. at 19-20.)

4 Marasco stated in his deposition that prior to July 10th, he understood Smith as being "familiar with guns" and as having "quite a few guns, both rifles and pistols." This belief came from information that was communicated to him at roll call, which he believed was obtained when "somebody did a check of his name." (Marasco Dep. at 103-5.)

5 In response to one of the initial complaints Shafer made to police about Smith, Marasco went to the Shafer home. Shafer complained to Marasco that Smith had shot out lights at Shafer's home and Marasco noticed that there "were bullet holes that riddled the top of [Shafer's] home." (Marasco Dep. at 26.)

6 Prior to July 10th, Marasco had spoken with Smith regarding complaints Shafer had made against him. During this conversation, Smith informed him that the government was conspiring against him. (Marasco Dep. at 26.)

In our judgment, these factors presented a threat that was similar to the one in Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997), in which the Third Circuit upheld a much greater use of force as reasonable under the circumstances. However, on appeal, the Third Circuit held that the facts in this case were distinguishable from those of Sharrar. In Sharrar, a woman called 911 to report that four men had entered her apartment and one of them, her ex-husband, had severely beaten her with a gun. Id. at 814. Within two hours, numerous police officers and the SWAT team, dressed in black fatigues and armed with shotguns, rifles and submachine guns, had surrounded the home of the ex-husband and blocked off the entire city to vehicular traffic, by land or by sea. Id. at 815. The Third Circuit held that the amount of force used in Sharrar was not excessive because police were attempting to arrest four men, one of whom had apparently used a gun in a violent episode one or two hours prior to the arrest. Id. at 822. The Third Circuit held that the instant case is distinguishable from Sharrar because "officers were approaching only one man and, unlike in Sharrar, where a violent assault involving a gun was itself the catalyst for the police arriving on the scene, were responding to a minor complaint." Smith, 318 F.3d at 516.

The Third Circuit also noted that there was no indication that Smith had ever used a gun in a violent manner or, "[m]ost importantly, there is no indication in the record that Smith had any history of violence which the officers may have been aware." Id. at 517. In the Factual Background of our previous opinion, we noted that Defendants indicated that "police learned that Smith possessed several weapons, had experience using them and was volatile." (J. Marasco Dep. at 102-3, 105.) Plaintiffs, who bore the burden of contradicting this assertion in their response to Defendants' initial Motion for Summary Judgment, did not refute this characterization and in fact, relied upon it in their brief.⁷ Nonetheless, the Third Circuit concluded that "the Smiths have proffered evidence sufficient to require that the question of the reasonableness of activating SERT and of SERT's tactics be submitted to a jury." Smith. 318 F.3d at 517.

7 Plaintiffs' reply brief to Defendants' first Motion for Summary Judgment criticized the officers' conduct as unreasonable in light of the fact that Defendants "understood Mr. Smith to be a `volatile' man, suffering from Post-Traumatic Stress Disorder and a serious heart condition, who had expressed fear of oppression and aggression by the State Police." (Pl.'s Opp. to Def.'s Mot. for Summ. J., filed on Aug. 4, 2001, at 44.)

We are not aware of exactly what facts were presented to the Third Circuit in this case, but we respectfully believe that a serious factual error may have been made on appeal because of our failure to fully point out the quite violent past conduct of Smith in shooting out his neighbor's lights and riddling his neighbor's home with bullet holes. This is obviously a serious matter and we suggest that the need of the police to properly deal with such a situation without disruption ought to outweigh any reluctance to alter a prior opinion or conclusion. We most respectfully urge the Third Circuit to reconsider the reasonableness of the use of SERT if they were not aware of these facts at the time of their prior opinion.

The Third Circuit remanded this case in order for us to determine the issue of qualified immunity. Id. at 518. Having concluded in our earlier opinion that the first step in the qualified immunity inquiry had not been satisfied because the amount of force used was not excessive, we declined to proceed to the second step to determine whether a reasonable officer would have known his conduct to be in violation of the constitution. See Smith, 227 F. Supp.2d at 338. In light of the foregoing, it appears that the Third Circuit would have us reconsider this finding in accordance with the holding in Sharrar, Specifically, the court stated that it "find[s] it appropriate to remand the qualified immunity issue to allow the district court to make the necessary factual determinations with respect to qualified immunity in the first instance." Smith. 318 F.3d at 510. To do so would appear, at least on the surface, to contradict the earlier statement that the reasonableness of activating SERT and SERT's tactics is a question for the jury.

In order to resolve this potential conflict, we refer to the Supreme Court's discussion of qualified immunity in Saucier v. Katz, 533 U.S. 194 (2001), for guidance. In Saucier, the Court reversed the Ninth Circuit's holding that, although a constitutional right had been violated, it was for a jury to decide whether a reasonable law enforcement officer would have understood it to be a violation. Id. at 200. The Court reasoned that to decide cases in this way "could undermine the goal of qualified immunity to `avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.'" Id. The Court also repeated its rejection of the "argument that there is no distinction between the reasonableness standard for warrantless searches and the qualified immunity inquiry," though it admitted that this argument has some appeal since "it would be inconsistent to conclude that an officer who acted unreasonably under the constitutional standard nevertheless was entitled to immunity because he `reasonably acted unreasonably.'" Id. at 203. Nevertheless, the Court held that the inquiries of excessive force and qualified immunity are distinct and offered the following explanation. In the case of excessive force, an officer is justified in the level offeree used if the "officer reasonably, but mistakenly, believed that a suspect was likely to fight back." Id. at 205. In the case of qualified immunity, however, an officer is entitled to immunity if his mistake as to the amount of force that was legal under the circumstances was reasonable. Id.

While this distinction appears to be clear on its face, we are uncertain how we are to assess whether an officer was reasonable in his understanding of the amount of feree the law allows under certain circumstances without also determining whether the officer was reasonable his assessment of the threat he faced. Thus, even if we were to conclude, as the Third Circuit seems to urge, that the amount of force used in this case was a constitutional violation, we respectfully find that any mistakes made by the officers in determining the amount of force that could be legally used against Smith were reasonable. In doing so, we again rely on Sharrer, It seems to us that if we, as a federal court learned in the law, interpreted Sharrar as justifying the use of SERT and the tactics it employed in this case, then it seems reasonable that a police officer at the time of the incident would have come to the same conclusion. While it is true that Smith was just one person, the fact that he was heavily armed, violent in the past, and volatile made him particularly dangerous. The fact that Scianna and Marasco knew Smith to possess multiple firearms, had seen multiple bullet holes in the neighbor's home, and what looked to be a laser-sighted gun targeting Marasco seems no less, and in fact maybe a great deal more, threatening than a 911 report that an individual used a handgun to beat someone up. Based on these factors, we find that Marasco and Scianna were reasonable in their assessment of the threat Smith posed and therefore reasonable in the amount offeree that they could legally use in response. They had a duty to act and could not just withdraw and leave Smith and Shafer to their own devices.

Since T. Rodriguez, M. Rodriguez, Marcantino, Fetterolf, and Hall relied on the information communicated to them by Marasco and Scianna in determining the amount of force that could be used legally, they too are entitled to qualified immunity on the charge of excessive force. The Third Circuit has stated that according to State Police procedure, SERT is not to be activated unless the police have obtained or are in the process of obtaining a warrant, or there are exigent circumstances. They point to this as evidence that Fetterolf and Hall acted unreasonably in activating SERT. We suppose that this argument might also be interpreted to suggest that Fetterolf and Hall could not have reasonably thought their actions to be legal since SERT was activated without a warrant. However, we do not accept this argument because both Fetterolf and Hall's depositions very clearly state that they were under the impression that the situation at the Smith home met the criteria for SERT activation and that the police were in the process of obtaining the necessary warrants that night. (Fetterolf Dep. at 31; 43-44; Hall Dep. at 30-31.) Thus the remaining Defendants who could be liable under § 1983 are entitled to qualified immunity with regard to the excessive force claim.

2. State Created Danger

In our prior opinion in this case, we found that Plaintiffs had failed to establish a state created danger. See Smith, 227 F. Supp.2d at 357. On appeal, the Third Circuit held that Plaintiffs had proffered sufficient evidence such that a reasonable jury could find a constitutional violation in this regard. Smith, 318 F.3d at 510. Thus, the case was remanded to determine whether a reasonable officer would have understood that Defendants' conduct constituted a state created danger. Id. at 511.

The elements of a state created danger claim alleged under § 1983 were established in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1999). Plaintiff must prove: (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; and (4) the state actors used their authority to create an opportunity that otherwise would not have existed. Id. at 1152. In the instant case, Defendants participated in the events of July 10^th and 11^th in various capacities. Thus we will analyze whether a reasonable officer would have understood each type of conduct to be lawful according to the conduct of each remaining Defendant.

a. Marasco

Plaintiffs argue that Marasco precipitated a state created danger by participating in the formation of an initial perimeter around the Smith home. To review, Marasco, along with Scianna, responded to Shafer's complaint that Smith was shining a light on his property and/or had shot out lights. After observing a red light shining on Scianna in Smith's backyard, Marasco called for backup. Once backup arrived, Marasco pulled back up into the driveway and close to the Smith house. From there, he took up a position behind his car until SERT arrived to secure the perimeter. (Marasco Dep. at 130-31.) During the time that Marasco was positioned in the driveway, he believed Smith to be in the home. (Id. at 131.) As to Marasco's knowledge of Smith's medical condition, he stated in his deposition that he had heard Smith had emotional and psychological problems and that he had once complained about chest pains during a prior arrest. (Marasco Dep. at 93, 104-5.) In addition, based on two prior visits to the Smith home, he felt that Smith was mentally unstable. (Id. at 29.) Marasco was aware that Smith was a Vietnam veteran, which did not lead him to be concerned about Smith's state of mind, but did reinforce his belief that Smith was trained in the use of weapons. (Id. at 33.) During the first two visits to the Smith home, Smith willingly spoke with Marasco, complied by turning off the light shining on Shafer's property, and although rough at first, the first visit ended on a positive note. (Id. at 54, 57.) Plaintiffs have not proffered any other evidence contrary to these facts or to suggest that Marasco had more definite or extensive knowledge of Smith's condition.

We must determine whether the law was clearly established such that a reasonable officer would have known Marasco's conduct to be unlawful given these circumstances. First, we must ask whether the law clearly establishes that the harm caused by such conduct was foreseeable and direct. The Third Circuit held that a reasonable jury could find that it was foreseeable that Smith would flee the house and ultimately suffer a heart attack. See Smith, 318 F.3d at 507. However, our question is not what a jury might do, but whether at the time of the incident the law gave Marasco fair warning that his conduct could be deemed to have resulted in a foreseeable or direct harm to Smith. See Hope, 536 U.S. at 741.

Defendants cite several cases which they argue could have led Marasco to believe that his decision to establish a perimeter would not result in a foreseeable or fairly direct harm to Smith. However, in each of the cases cited by Defendants, at issue was the failure of police to act when presented with certain circumstances. See Hansberry v. City of Philadelphia, 232 F. Supp.2d 404, 409-410 (E.D. Pa. 2002); White v. City of Philadelphia, 118 F. Supp.2d 564, 571 (E.D. Pa. 2000); Estate of Burke v. Mahanoy City, 40 F. Supp.2d 274, 281-82 (E.D. Pa. 1999), aff'd, 213 F.3d 628 (3d. Cir. 2000). In this instance, Plaintiffs argue that the affirmative action taken by Marasco in forming a perimeter around the Smith home ultimately led to Smith's death in the woods. Still, it might be argued that Estate of Burke v. Mahanoy City is analogous to the situation presented here in that Marasco had some indication that a harm might occur, but failed to heed it. In Estate of Burke, this court held that it was not foreseeable that two young intoxicated men who left a party after a fight, while remarking in the presence of police,⁸ "I'm going to kill ya's . . . blow your f'ing heads off," would return to the party to shoot and kill someone. 40 F. Supp.2d 274, 281-82 (E.D. Pa. 1999), aff'd, 213 F.3d 628 (3d. Cir. 2000).

8 Taking the facts in a light most favorable to Plaintiffs, it was accepted for purposes of summary judgment that police were present for the remark.

However, we think a more applicable set of facts can be found in Estate of Henderson v. City of Philadelphia, 1999 U.S. Dist. LEXIS 10367 (E.D. Pa. 1999). In Estate of Henderson. a mother called 911 to have her son, who was schizophrenic, involuntarily committed to a mental hospital. Id. at *5-7. When police arrived, the mother showed them the papers she had obtained for his involuntary commitment. Police then talked with both mother and son, but after a few minutes, the son, Henderson, said he had to get something and went upstairs. Id. After he left, the mother told police that she thought Henderson "is probably going to go out the window." Id. Believing her to mean that he would try to escape out the window, rather than jump, police did not attempt to follow him. A few minutes later, Henderson jumped out the window and severely injured himself. Id. The court held that Henderson's jumping out of the window was foreseeable because police were presented with papers that stated he was a danger to himself, they had heard him tell his mother he did not want to go to the hospital, he was allowed to go upstairs alone, and they were warned by his mother that he might jump out the window. Id. at *23. Additionally, the court held that the officers could be said to have directly caused the injury because they failed to control Henderson's actions by restraining him. Id. at *24.

Based on the foregoing, we must determine whether a reasonable officer would have believed at the time in question that the formation of a perimeter would not cause a foreseeable and direct harm to Smith. On the issue of foreseeability, we do not believe that any indicators Marasco might have had about Smith's physical and mental state were comparable to the more definite and immediate indicators in Estate of Henderson, In Estate of Henderson, the officers had a formal commitment paper that clearly stated that Henderson posed a threat to himself, Henderson told them that he did not want to be committed to the hospital, and the mother specifically warned them that he might "go out the window." Here, Marasco's indicators were limited to a belief that Smith was "suffering from emotional problems and mental problems" and hearing from other officers that he had once complained of chest pains during a previous arrest. (Marasco Dep. at 93, 104-5.) Marasco did not have any sort of report regarding Smith's medical conditions, nor did he have contact with Smith that evening such that he would have been able to observe his behavior and predict his response in any way. He also did not receive any sort of warning from anyone regarding Smith's expected response. Plaintiffs have not proffered any evidence to show that Marasco understood the extent of Marasco's problems or that Marasco had any sort of knowledge which would have led him to believe that establishing an initial perimeter around Smith's house would cause him to leave the house, go into the wooded area behind the house, and ultimately have a heart attack. In fact, in his prior interactions with Marasco, Smith, despite prior violence with his neighbor, had demonstrated that he was able to communicate and interact with police without difficulty.

Nor would a reasonable officer had believed that Marasco could have directly caused Smith's injury by initially forming a perimeter around the house, since unlike in Estate of Henderson, where but for the policemen's failure to restrain Henderson, Henderson would not have been injured, it cannot be said with certainty that but for the formation of an initial perimeter around the Smith home, Smith would not have had a heart attack. While the Third Circuit has held that a reasonable jury could conclude that Marasco directly caused injury by cutting Smith off from his "`private source of protection.'" Smith. 318 F.3d at 508, citing Kneipp, 95 F.3d at 1210, we emphasize again here that our inquiry is whether a reasonable officer would have understood his actions to be a direct cause of injury. Since there is no immediate connection between Marasco's actions and Smith's injury, as in Estate of Henderson. where if police had intervened, they most certainly could have prevented Henderson from injuring himself, we find that a reasonable officer would conclude that Marasco's actions would not be considered a direct cause of injury to Smith under clearly established law.

Turning to the second element of state created danger, we now assess whether Marasco was reasonable in believing that under the law he did not act in willful disregard for Smith's safety, or in other words, that his conduct was not conscience-shocking. We believe that a reasonable officer would have come to this conclusion, given, in the words of the Third Circuit, the "elusive" nature of this area of the law. See Smith, 318 F.3d at 509. An analysis of alleged conscience-shocking conduct must be determined according to the circumstances of each case. Id. at 508. The Third Circuit noted that the situation in the instant case fell somewhere between a hyperpressurized environment, as in the case of a prison riot, and one in which "police had `the luxury of proceeding in a deliberate fashion, as prison medical officials can.'" Id. at 508-9. Thus the court concluded that gross negligence or arbitrariness that shocks the conscience is the appropriate standard here. Beyond that, however, there is no definitive case law on which Marasco could have relied to determine whether his conduct would be considered grossly negligent or arbitrary. Thus we must find that a reasonable officer would have believed Marasco's conduct to be lawful under the circumstances.

In contrast to the law pertaining to shocking the conscience, we believe the law is clearly settled as to the third element of the state created danger claim, in which we must inquire whether a special relationship existed between Smith and the state. A special relationship exists if Smith "was a foreseeable victim of a defendant's acts in a tort sense." Kneipp, 95 F.3d at 1209 n. 22. Since a reasonable officer would have understood Smith, as the focus of the initial perimeter, to be a foreseeable victim of potential harm caused by the perimeter, we find that Marasco should have understood that to be the case.

Finally, we address whether Marasco was reasonable in believing that his conduct did not unlawfully create an opportunity for harm. The case law states that officers effect a state created danger when they use their authority as police to create a dangerous situation. See Kneipp, 95 F.3d at 1208. In Kneipp, police officers stopped a husband and wife for causing a disturbance one night in the street. Id. at 1199-1203. The wife, Samantha, was so intoxicated that she could not walk without assistance and had urinated on herself. Id. After speaking with the couple, police agreed to let the husband go home to relieve the babysitter. Id. However, instead of escorting Samantha home, police sent her home alone. Id. Approximately two hours later, Samantha was found at the bottom of an embankment. Id. The extreme cold had caused her to suffer from hypothermia, which then caused severe brain damage. Id. The court held that police used their authority to create the opportunity for harm because had they not become involved, the husband probably would have escorted Samantha home. Id. at 1209.

We do not think that under Kneipp a reasonable officer would have concluded that setting up an initial perimeter created an opportunity for harm. Unlike Kneipp, where through direct contact, the officers observed Samantha's inebriated condition and could have reasonably believed that she was incapable of getting home safely by herself, Marasco did not observe Smith and had no indication that he might respond as he did. Moreover, when Marasco took up his position, he believed Smith to be in his home. No reasonable officer could believe that forming a loose perimeter around an individual's home, even with the limited knowledge Marasco had of Smith's condition, could have created an opportunity for harm.

Other courts have found that an opportunity for harm is created when police strip an individual of the means to defend him or herself or cut him or her off from aid. See Morse v. Lower Merion Sch. Dist, 132 F.3d 902, 914 (3d Cir. 1997); Johnson v. Dallas Indep. Sch. Dist. 38 F.3d 198, 202 (5th Cir. 1994). We are not convinced that that occurred here. To the best of his knowledge, Marasco believed Smith to still be in his home, from which Smith could have communicated with police by phone to resolve the situation. Thus a reasonable officer in Marasco's situation would have believed that the formation of an initial perimeter around the Smith home would not create an opportunity for harm under the law.

In conclusion, a reasonable officer would have believed Marasco's conduct to be lawful under the state created danger theory because relevant legal precedents do not indicate that his conduct would be viewed as foreseeably and directly causing Smith injury, the law is unclear as to what constitutes conscience-shocking conduct, and legal precedents do not indicate that Marasco would be deemed to have created an opportunity for harm. Consequently, we find that Marasco is entitled to qualified immunity with regard to the state created danger claim.

b. Scianna

We now consider whether Scianna was reasonable at the time of the incident in believing that his conduct would not bring about a state created danger. According to Scianna's deposition, after backup arrived, he moved thirty yards closer to the Smith home from where he had been at the end of the driveway. (Scianna Dep. at 65.) From this position, and armed with a shotgun, Scianna believed that he saw Smith move from the garage to the shed. (Id. at 65, 33) After SERT arrived, Scianna was relieved of this position and went to observe from behind Smith's vehicles in the driveway for approximately an hour. (Id. at 66-67.) At that time, Scianna believed Smith to have gone into the shed. (Id.)

As to Scianna's knowledge of Smith's health, Scianna stated that on his first visit to the Smith home, Smith told him that he was a Vietnam veteran, that he suffered from Post-Traumatic Stress Disorder (PTSD), and that Smith appeared mentally unstable. (Scianna Dep. at 14-15.) Nonetheless, Smith did not resist speaking to them on this occasion or during the second visit Scianna made, during which Scianna described Smith as behaving "pretty reasonable." (Id. at 29.)

Turning to the analysis of whether Scianna was reasonable in believing that his conduct did not effect a state created danger, we note that Scianna's experience in forming the perimeter while largely the same as Marasco's, differed with respect to his knowledge of Smith's mental health and whereabouts. Unlike Marasco, Scianna was told by Smith that he suffered from Post-Traumatic Stress Disorder. However, there is no indication that Scianna knew Smith to be suffering from a heart condition. Another difference is that, unlike Marasco, Scianna continued to participate in the perimeter around the house after believing Smith to have left the house.

Scianna's more specific knowledge that Smith suffered from PTSD increases the likelihood that a reasonable officer might view Smith's death as foreseeable under Estate of Henderson, in which the officers had concrete indicators Henderson would harm himself. However, we believe unless a reasonable officer also had knowledge that PTSD was likely to lead to a heart attack incident such as this, Scianna still lacked sufficient indicators to foresee that the formation of a perimeter could be deadly to Smith. According to Scianna's deposition, he understood PTSD as

[w]hen a human being goes through a traumatic time, like such as war, he said he was in Vietnam, I guess it just stays with you. It effects you mind, it effects your emotions. I guess what it does is flashes you back to that point, from what I under-stand about it. I'm not an expert with it.

(Scianna Dep. at 15.)

This seems to be a reasonable understanding of PTSD, particularly since Scianna did not recall having had any training on it, (Id.), and one that would not lead a reasonable officer to foresee that as a consequence of forming a perimeter around the house, Smith would run into the woods and later have a heart attack.

As indicated above with regard to Marasco, neither do we believe that a reasonable officer would have concluded that but for the formation of a perimeter around the Smith home, Smith would have survived. However, we must address here whether a reasonable officer would believe that Scianna's decision to continue to be part of the perimeter after he believed Smith left the house was a direct cause of Smith's death. InEstate of Henderson, the court held that but for the officers' failure to intervene and stop Henderson from jumping out the window, Henderson would not have been injured. See 1999 U.S. Dist. LEXIS 10367 at *24. However, unlike the officers in Estate of Henderson, Scianna was not aware of the potential for harm. Since Scianna had no knowledge of Smith's heart condition or need for medication, we find that a reasonable officer in his position would not have believed that continuing to maintain a perimeter would directly cause Smith to have a heart attack in the woods.

As to whether Scianna's actions shocked the conscience, we reiterate that the law is unclear in this area. Hence we find that a reasonable officer could not have believed that it was grossly negligent or arbitrary to remain on the perimeter to contain a suspected gunman.

With regard to whether a special relationship existed between the state and Smith, we find that one existed, since as the target of the perimeter Scianna participated in forming, Smith was a foreseeable victim of Scianna's acts.

Finally, we consider whether Scianna created an opportunity for harm by remaining on the perimeter after Smith left the house.⁹ Plaintiffs argue that by continuing to participate in the perimeter after Smith left the home, Scianna cut Smith off from his ability to defend himself. At that point, we still do not think that a reasonable officer would have understood his conduct to be unlawful, since Smith still had the ability to come out of the woods and communicate with police, as he had done on prior occasions. Moreover, since Scianna had no knowledge of Smith's heart condition and the possibility that Smith was without his medication, it is not at all on par with the facts in Kneipp, where the officers knew the wife to be impaired. We find that a reasonable officer would not have believed himself to be causing a state created danger by setting up a perimeter around the house and maintaining it under these circumstances, and we find that Scianna is entitled to qualified immunity with regard to the state created danger claim.

9 In our analysis of Marasco's right to qualified immunity, we concluded that the initial formation of the perimeter did not create the opportunity for harm. Thus we will not duplicate that analysis here.

c. M. Rodriguez

The parties do not dispute the following facts with regard to the actions taken by M. Rodriguez. M. Rodriguez was in command of the scene at the Smith home from the time the he arrived in response to Marasco's backup call until the Top-Corn, Fetterolf, arrived. (M. Rodriguez Dep. at 86.) Prior to arriving at the Smith home, a police communications officer (PCO) radioed M. Rodriguez that either Marasco or Scianna had been targeted by a laser light. (Id. at 54.) When M. Rodriguez arrived at the Smith property, M. Rodriguez ordered that the police cars be driven closer to the house, ordered and participated in the initial formation of a perimeter around the Smith home, called the Smith residence on the phone, and called out to Smith over the public address system when he was in the home and running away from the home. (Id. at 65-66, 79, 109.) In addition, M. Rodriguez requested SERT assistance from Fetterolf and informed him that one of the officers on the scene thought that he had seen Smith outside with a rifle. (Id. at 96-97, 112.)

With regard to his personal knowledge of Smith, M. Rodriguez stated in his deposition that he knew from roll call that Smith was a Vietnam veteran, but did not recall any specific knowledge about Smith's mental or physical condition. (Id. at 51.) In addition, he remembered hearing that Smith had, on some prior occasion, shot out lights on his neighbor's property and knew from roll call notes that officers were not to go to the Smith residence alone. (Id. at 43, 21.) M. Rodriguez also stated that while at the Smith property on July 10^th and July 11th, he observed a red light in one of the windows of the Smith home and, later, someone he thought to be Smith in the backyard. (Id. at 92, 98.) Plaintiffs do not dispute these facts, but they do argue that no one knew the source of the red light and that no one definitively identified that Smith was carrying a weapon. While it is true that no laser-sighted weapon was ultimately recovered from the Smith home, this does not alter M. Rodriguez's perception that he saw a red light and believed that it could have been coming from a laser-sighted weapon. Additionally, Plaintiffs assert that no officer could definitively identify that Smith was carrying a rifle. While this may be true, what is relevant is M. Rodriguez's belief, which was based on something he heard from one of the other officers at the scene. Moreover, Plaintiffs have not offered any evidence to counter M. Rodriguez's statement that he heard Smith was carrying a rifle.

We now consider whether a reasonable officer would believe that M. Rodriguez's conduct would result in foreseeable and fairly direct harm to Smith under the law. As discussed in the foregoing, we believe that underEstate of Henderson, an officer would reasonably foresee harm only if the officer was aware of definite indicators that the injured party was susceptible to the harm. In M. Rodriguez's case, Plaintiffs have failed to establish that M. Rodriguez knew anything more than that Smith was a Vietnam veteran and that he had a dispute with his neighbor. Based on this information alone, M. Rodriguez could not have foreseen that Smith would flee his home and later suffer a heart attack in the woods. It simply would not have been reasonable for M. Rodriguez to conclude that because Smith had fought in Vietnam and had an ongoing feud with his neighbor, he must have physical and mental health problems, such as PTSD. In the absence of specific information regarding Smith's health, we find that a reasonable officer would not have believed it unlawful to form a perimeter, attempt communications, and request SERT in response to a man they believed to be targeting police with a laser-sighted weapon.

As to whether a reasonable officer would have believed M. Rodriguez's actions to have fairly directly resulted in Smith's harm, we find that M. Rodriguez was similarly situated to Scianna, in that he had no knowledge which would have led him to believe that his actions would directly cause harm to Smith given any physical or mental problems he might have had.

We have already stated that the law is unclear as to what it considers to be conscience-shocking conduct and that participating in the formation of a perimeter in response to a man police believed to be targeting them can hardly be considered grossly negligent or arbitrary. As to whether a reasonable officer would consider requesting SERT to be grossly negligent or arbitrary under these circumstances, we find that no reasonable officer would consider such conduct grossly negligent or arbitrary based on the lack of knowledge M. Rodriguez had about Smith's condition. Moreover, when asked in his deposition why he requested SERT, M. Rodriguez's response indicates that the decision to do so was anything but arbitrary. His explanation was as follows:

One of our troopers had been painted with the light. I had seen the light. It's an ongoing situation between the two neighbors. Mr. Smith was armed or believed to be armed. Nobody was answering us. We weren't sure, at this point, the whereabouts of his wife.

(M. Rodriguez Dep. at 97.)

Given the amorphous standard of conscience-shocking conduct and the circumstances in M. Rodriguez's case, we find that no reasonable officer would have believed his conduct to be conscience-shocking.

As with the other Defendants requesting qualified immunity we find that, M. Rodriguez's conduct established a special relationship between the state and Smith. Since Smith was the focus of M. Rodriguez's actions that evening, a reasonable officer would have concluded that Smith could be a foreseeable victim of his actions.

We now consider whether a reasonable officer would have believed that M. Rodriguez to used his authority to create an opportunity for harm. By comparison to Marasco and Scianna, M. Rodriguez had even less knowledge about Smith's physical and mental condition. In the absence of such knowledge, we find that a reasonable officer would not have believed himself to be creating an opportunity for harm by ordering the formation of an initial perimeter around the home of a suspected gunman or in calling in SERT to respond to the situation. In addition, we find that a reasonable officer would not have believed himself to be cutting Smith off from his ability to defend himself. M. Rodriguez repeatedly attempted to contact Smith by phone, on a public address system, and by calling out to him when he was believed to be in the backyard. As to the opportunity for harm that might have been caused by the fact that Smith was, as Plaintiffs argue, prevented from returning to his home to obtain medication, again, M. Rodriguez had no knowledge that Smith was on medication, and thus would not have known of the opportunity for harm caused by the perimeter. Finally, M. Rodriguez did not incapacitate Smith in any way or prevent him from responding to numerous attempts at communication, which could have remedied the situation in a timely manner. Therefore we find that M. Rodriguez is entitled to qualified immunity with regard to the state created danger claim.

d. T. Rodriguez

As established in our previous discussion of Defendants' direct participation, T. Rodriguez participated in the formation of an initial perimeter around the Smith home by taking a position on a tree line. (T. Rodriguez Dep. at 43.) On the evening of July 10th, T. Rodriguez heard Marasco frantically call for back-up at the Smith home. (Id. at 30.) After receiving permission from his supervisor, M. Rodriguez, he responded to the call. (Id.) Upon arrival, Marasco informed T. Rodriguez about the red light. (Id. at 34-35.) T. Rodriguez then observed a red light in the window of the Smith home using binoculars. (Id. at 52.) When M. Rodriguez arrived, he ordered T. Rodriguez to take a position on the tree line. (Id. at 43.) From that position, he observed Smith move between his home and the shed. (Id. at 66.) T. Rodriguez thought he saw Smith carrying something under his arm but he could not positively identify it. (Id. at 70.) When T. Rodriguez believed Smith to be in the shed, he suggested that the perimeter be moved up in order to prevent Smith from returning to the house, where he might have access to weapons. (Id. 75, 77.) Shortly thereafter, SERT arrived and T. Rodriguez was relieved of his position at the tree line. (Id. at 78.)

Prior to this incident at the Smith home, T. Rodriguez had responded to complaints there on two or more previous occasions. (Id. at 8.) From those experiences, he knew Smith to be hostile towards police and his neighbor. (Id. at 10.) In his deposition, T. Rodriguez recalled that Smith gave short answers to their questions, walked away while they were talking, and "treated us as if we were insignificant." (Id. at 21.) In addition, he recalled that Smith's neighbor, Shafer, had complained that Smith had yelled about Shafer's bi-racial marriage and had shot out lights on Shafer's property. (Id. at 18-19.) In conversations with other officers, T. Rodriguez learned that Smith was hostile with them and that there was a general feeling that he was "out of control." While T. Rodriguez knew Smith was a Vietnam veteran, he did not have any knowledge that Smith had mental health problems. (Id. at 24.) Rather, "the consensus was that he was somewhat volatile." (Id.) Finally, T. Rodriguez did not have any information about Smith's physical condition. (Id. at 26.)

We find that since the facts pertaining to T. Rodriguez's actions and his knowledge of Smith's physical and mental health are comparable to those of Marasco and Scianna, T. Rodriguez is entitled to qualified immunity. Like Marasco and Scianna, he took up a position on the perimeter of the Smith home with the belief that Smith was in the home and possibly armed. The fact that he recommended moving closer in order to block Smith from returning home where he may have had access to weapons does not distinguish his case from Marasco or Scianna's, since T. Rodriguez had no knowledge or indication that Smith had a physical or mental condition that could cause him to be harmed by this act. Thus we find T. Rodriguez is entitled to qualified immunity with regard to the state created danger claim.

e. Marcantino

Plaintiffs allege that Marcantino participated in the events of July 10^th and 11^th by approving Fetterolf s decision to call in SERT. (Pl.'s Br. in Opp. at 32.) However, while Marcantino appears to have been informed that SERT was called after the fact, there is no evidence he was involved in the initial decision to do so. According to Marcantino's deposition, he was camping at a remote location at that time and was not contacted until between 6:00 a.m. and 8:00 a.m. on July 11th. (Marcantino Dep. at 34.) At that time, Fetterolf informed him SERT had already been called to the Smith residence after a laser sight was placed on one of the troopers. (Id. at 34-35.) According to Fetterolf, Marcantino was also told that SERT was planning on entering the home and shed and Marcantino indicated to Fetterolf that this was a good idea. (Fetterolf Dep. at 57.) During a second phone call, Fetterolf informed Marcantino that SERT had entered the shed and home. (Marcantino Dep at 41.)

Prior to July 10th, Marcantino had had at least two interactions with Smith. He had once spoken with Smith on the phone in reference to Smith's dispute with his neighbor. (Id. at 19.) Marcantino sent an officer out to speak with Smith and later invited Smith to speak with him in person at his office. (Id. at 26.) Sometime thereafter, Marcantino was also involved in an investigation of a complaint by Smith that excessive force was used in arresting him prior to July 10^th. (Id. at 28.) Marcantino was aware that Smith was a Vietnam veteran and, in the course of the excessive force investigation, remembered seeing or hearing "something about Nitro," which he believed to be a medication taken for heart problems. (Id. at 26, 49.) As to Smith's psychological health, Marcantino indicated in his deposition that he had no specific knowledge that Smith was suffering from emotional problems or PTSD. (Id. at 50.) Plaintiffs allege that Fetterolf remembers Marcantino warning the troop at roll call to "avoid placing Mr. Smith under undue pressure" and not to go to the Smith home alone." (Pl.'s Br. in Opp. at 32.) However, Fetterolf actually stated in his deposition that they were only told, possibly by Marcantino, to be careful and not to go alone. (Fetterolf Dep. at 17-19.) Fetterolf did not know the basis for the warning, other than that a situation existed between neighbors. (Id.)

We find that a reasonable officer would not have believed Marcantino's phone conversations with Fetterolf would foreseeably and directly cause harm to Smith. Presumably, Plaintiffs want to argue that Marcantino, as Fetterolf's supervisor, had the opportunity to halt the SERT operation when he spoke with him on the morning of July 11^th or advise against going into the shed or home. As with the other Defendants previously discussed in this section, we do not believe that Marasco had any specific indicators, such as the officers had in Estate of Henderson. which would have led a reasonable person to foresee Smith's injury. As far as we can tell from the facts established, Marcantino knew only that Smith was involved in a heated dispute with his neighbor, that he was a Vietnam veteran, that he had filed a complaint for the use of excessive force in his arrest, and that he might be taking medication for a heart condition. We find that none of these details would lead a reasonable officer to foresee that Smith would flee his home and later have a heart attack in the woods as a result of calling in SERT. As to the decision to enter the shed and home, since Smith was not found in either of these locations, we fail to see how he was injured by the tactics used there. Additionally, we find that no reasonable officer would have believed that Marcantino's failure to oppose the SERT operation directly caused injury to Smith because Marcantino lacked any specific information regarding Smith's fragile mental and physical condition.

As to the second element of the state created danger test, we rest upon our earlier analyses, in which we found that since the law on conscience-shocking is unclear, no reasonable officer would have concluded that Marcantino's actions were grossly negligent or arbitrary. Given that Marcantino had no knowledge of Smith's mental and physical problems, we find that he was not grossly negligent in tacitly approving the continued use of SERT to deal with a potential gunman who was unresponsive to more benign attempts at contact. Additionally, no reasonable officer would have believed Marcantino to have acted arbitrarily since he relied on the information provided to him by Fetterolf in tacitly approving continuation of the SERT operation and explicitly approving entrance into the shed and home. We believe a reasonable police officer would have considered such reliance lawful, as police officers are not expected to operate in a vacuum and can and should rely on the information provided to them by other officers at the scene.

We find that the third element of the state created danger test is met here, since a reasonable officer would have believed that a special relationship was created when the state troopers and SERT took action to try to isolate and arrest Smith.

Finally, we address whether a reasonable officer would have believed that Marcantino used his authority to create an opportunity for harm by tacitly approved continuation of the SERT operation and the entrance of SERT into the shed and house. Relying on Kneipp, we find that a reasonable officer would not have concluded an opportunity for harm was created because, unlike the officers who observed the highly intoxicated woman in Kneipp, Marcantino had no knowledge that Smith was impaired in any way, such that the use of SERT would have put him in harm's way. Nor would a reasonable officer conclude that Marcantino's authority had the effect of cutting Smith off from defending himself or seeking aid, since Marcantino had no reason to believe that Smith was incapable of communicating with police or turning himself in.

Having analyzed whether a reasonable officer would have believed Marcantino's actions to have effected a state created danger, we find that a reasonable officer would not have believed that all of the elements were met. Given Marcantino's level of personal knowledge regarding Smith's mental and physical health, a reasonable officer would not have believed that Marcantino's actions would have foreseeably and directly caused Smith's injury, that they shocked the conscience, or that they created an opportunity for harm. Since a reasonable officer could conclude that only one of the elements of the state created danger test was met, namely the special relationship element, we find that Marcantino is entitled to qualified immunity with regard to the state created danger claim.

f. Fetterolf and Hall

We analyze the roles of Fetterolf and Hall together in the alleged state created danger claim because they were ultimately responsible for the use and tactics of SERT that night and they possessed nearly identical levels of knowledge that evening regarding Smith. As Plaintiffs describe it, "Fetterolf and Hall were the primary decision makers on the SERT activation."¹⁰ (Pl.'s Br. in Opp. at 33.) As Top Com, Fetterolf approved the decision to call SERT, was responsible for overseeing the entire operation at the Smith home on July 10^th and July 11th, and as such, approved the tactics used by SERT. (Fetterolf Dep. at 27, 42, 50.) Hall, as a SERT tactical advisor, concurred in the activation of SERT¹¹ and was in charge of SERT at the Smith home. (Hall Dep. at 50, 6-7.) In practice, this meant that while Hall formulated and recommended tactics to be used by SERT that evening, he was required to obtain approval from Fetterolf before employing them. (Fetterolf Dep. at 50.) Plaintiffs allege that Fetterolf and Hall activated SERT in spite of the fact that they did not know the source of the red light, there had been no activity by Smith in an hour, and noone had actually seen Smith with a firearm. (Id. at 33, 39.) In addition, Plaintiffs argue that together Fetterolf and Hall employed a "full SERT military assault despite full knowledge that there was no warrant, no barricaded gunman, and absolutely no facts supporting a conclusion that Mr. Smith was acting in an aggressive manner to the Troop or was a threat." (Pl.'s Br. in Opp. at 33.) Although Plaintiffs do not explain what they mean by full military assault or proffer evidence of Fetterolf's approval of this tactic, presumably they are referring to the use of men in camouflage with weapons, tear gas, and a flash bang device.

10 Plaintiffs also argue that Fetterolf approved M. Rodriguez's decision to form a perimeter that would cut Smith off from his home. Since we have already held that M. Rodriguez is entitled to qualified immunity as to the establishment of this perimeter, and Plaintiffs have not demonstrated that Fetterolf had any more knowledge than M. Rodriguez, it follows that Fetterolf is entitled to qualified immunity with regard to his approval of the perimeter.

11 As tactical supervisor, Hall was not empowered to activate SERT without first obtaining approval from his supervisor, Captain Torkar. (Hall Dep. at 30-32.)

Plaintiffs do not indicate that when he approved the SERT request, Fetterolf had specific knowledge of any mental or physical condition Smith might have had. Fetterolf's deposition indicates only that he remembered a warning not to go alone to the Smith home. (Fetterolf Dep. at 17.) Hall had no knowledge at all of Smith prior to the SERT request on July 10th. (Hall Dep. at 41-42.) On the evening of July 10th, both Hall and Fetterolf were informed that a red light was observed on an officer at the Smith home and, as a result, believed themselves to be dealing with a barricaded gunman. (Fetterolf Dep. at 26, 31; Hall Dep. at 30.) Neither officer was under the impression that a search or arrest warrant had been obtained when SERT was activated. Sometime after SERT's arrival at the Smith home, Fetterolf became aware that Weaver and Marasco went to obtain arrest and search warrants. (Fetterolf Dep. at 44.) Hall presumed that the paperwork for the warrants was being prepared at the time the SERT request was made. (Hall Dep. at 31.)

At approximately 3:10 a.m. on July 11th, Hall received Smith's medical history and communicated it to SERT members on the radio.¹² (Hall Dep. at 211-12.) The medical history was obtained by Krawczel, who had contacted the VA Hospital where Smith had been treated. (Krawczel Dep. at 19.) It indicated that Smith was prone to flashbacks to Vietnam and a possible heart condition. (Id. at 54, 211-212.) Although Fetterolf indicated in his deposition that he did not receive any intelligence regarding Smith's health subsequent to the activation of SERT, the evidence indicates otherwise and, taking the facts in a most favorable light to Plaintiffs, we will presume that since he was present in the command post with Hall the entire evening, he was aware of this information. (Fetterolf Dep. at 69, 72, 100.) When asked whether this information affected the how remainder of the operation was carried out, Hall answered as follows in his deposition:

12 SERT team members operate on their own separate radio frequency. (Domon Dep. at 90.)

No, sir. This was given out to the perimeter so that they could, you know, tailor their — they might be a little bit — they would try to assist the situation, given all this information. But, I mean, we never had the opportunity. We never came in contact with him.

(Hall Dep. at 213.)

When SERT failed to locate Smith in their search of the shed and house, they conducted a search of the woods behind the home. (Fetterolf Dep. at 82.) After searching for an hour, SERT located Smith's hunting hideout within 100 yards of the home. (Hall Dep. at 253.) SERT then went beyond that area to search a gully. (Id. at 250-53, 258). After two hours, SERT informed Fetterolf that they were unable to locate Smith and called off the search. (Fetterolf at 84, 87.)

Plaintiffs contend that several offers were made by neighbors and family members to participate in the search but that these offers were denied. (Pl.'s Br. in Opp. at 44.) Neighbor Christopher Zwicky requested that SERT take him into the woods to help locate Smith, but this request was denied due to safety concerns. (Zwicky Dep. at 25.) Instead, Zwicky went up in the search helicopter and directed the pilot to areas he thought Smith might be hiding. (Id. at 19-20.) The pilot also relayed this information to those searching on the ground. (Id.) In addition, Zwicky spent an hour at the command post, providing SERT with an aerial map and pointing out several areas where he thought Smith might be hiding. (Zwicky Dep. at 16-17.) Sometime after 5:00 a.m., Smith's daughters, Dana and Wanda, arrived at the scene but were prevented from going to the house by the roadblock. (Smith Dep. at 37-39.) Between 8:00 am. and 10:00 a.m., Dennis Schools, who had heard about the events at the Smith home over his police scanner, contacted a PCO at Reading State Police to offer the use of his bloodhounds in conducting the search. (Schools Statement at 1.) Fetterolf does not recall having knowledge of any such offer, but again, taking the facts in the most favorable light to Plaintiffs, we will assume he did. (Fetterolf Dep. at 102.) Hall indicated in his deposition that he was not aware of any requests by third parties to become involved in communicating with Smith, but that SERT policy dictated against it because "it's fraught with danger." (Hall Dep. at 261.)

Based on the facts as established above, we now consider whether a reasonable officer would have believed Fetterolf and Hall to have effected a state created danger by calling in SERT and authorizing SERT's tactics in attempting to arrest Smith. First, we examine whether a reasonable officer would have believed that calling in SERT would foreseeably and fairly directly cause injury to Smith. As indicated above, at the time Fetterolf requested SERT activation and Hall concurred, neither had specific knowledge of Smith's mental and physical limitations. However, they were informed that Marasco and Scianna believed they had been targeted by a gunman who refused to come out of his home or communicate with state and local police. Based on this information, Fetterolf ordered a SERT request and Hall concurred. Plaintiffs have not proffered any evidence that would demonstrate that at that point in time Fetterolf and Hall possessed information, such as the indicators the officers had in Kneipp, that would have led them to foresee that Smith would be injured by SERT's activation. Nor did they have any information which would have led an officer to believe that SERT activation would fairly directly harm Smith.¹³ Thus we find that a reasonable officer would not have believed SERT activation alone to be foreseeably or directly harmful.

13 The fact that SERT was activated without a warrant does not alter this conclusion because whether or not a warrant was obtained does not bear on the foreseeability of harm to Smith. We have already held in this opinion that there were exigent circumstances present, namely the belief that police were being targeted by a barricaded gunman, which justified activation followed by the procurement of a search and arrest warrant. Nonetheless, Plaintiffs raise this issue repeatedly throughout their brief so we address it again here.

Plaintiffs also argue that Fetterolf and Hall caused foreseeable and direct harm to Smith by calling out to Smith over a hailer and using rocks, a flash bang device, and tear gas to make entrance into the shed and house. By this time, Fetterolf and Hall had been informed of Smith's medical history. Specifically, they were aware that Smith suffered from flashbacks to Vietnam. This type of specific knowledge puts Fetterolf and Hall in the same position as the officers in Estate of Henderson, where the officers were presented with a written and oral warning that Henderson might harm himself. Thus we find that a reasonable officer in the position of Fetterolf and Hall would have believed that the use of rocks, a flash bang device, and tear gas might cause foreseeable harm. However, since Smith was not in the shed or house when these tactics were used, Plaintiffs cannot prove and we do not find that a reasonable officer would have believed them to have fairly directly harmed Smith.

Finally, we must consider whether a reasonable officer would have believed that calling off the search for Smith and rejecting the participation of third parties to assist in the search would result in foreseeable and direct harm to Smith. The facts indicated that SERT conducted a two hour search of the wooded area on foot. In addition, they used a helicopter to search the area from above and to locate Smith's hunting hideout. However, as Plaintiffs point out, they did not allow Smith's daughters to participate and they did not allow Smith's neighbor, Zwicky, to search on foot, or permit the use of bloodhounds. Nevertheless, they did search from the air with the neighbor Zwicky in a helicopter.

We do not believe that a reasonable officer would have concluded that a search conducted in this manner would have would have caused foreseeable and direct harm to Smith. Taking into account the threat posed by a suspected gunman, SERT utilized other methods of searching, rather than allowing friends and family to enter the area on foot. For example, the spent a significant amount of time with Zwicky in order to gather intelligence about the wooded area and where Smith might be. In addition, they had Zwicky go up in the helicopter to help direct SERT to these locations. We find that a reasonable officer would have believed that these alternatives compensated for not allowing family and friends to enter the area on foot and that had Smith been in the woods, they would have had a reasonable chance of locating him. In addition, when they were unable to locate Smith after two hours, we find that an officer would have been reasonable in concluding that Smith was no longer in that area and that it was appropriate to call off the search and that doing so would not foreseeably harm Smith. Nonetheless, even if we were to conclude that a reasonable officer would have deemed calling off the search a foreseeable harm, we cannot find that a reasonable officer would have believed that doing so would directly harm Smith, especially when Plaintiffs argue that if SERT had only left the scene, Smith would have come out of hiding. This is not Estate of Henderson, where officers failed to intervene and, rather predictably, Henderson went upstairs and jumped out the window. Police did intervene and conducted a reasonably thorough search. Unable to find Smith, they departed the scene. No reasonable officer could have believed that halting a reasonably thorough search of a wooded area would directly cause Smith to die of a heart attack, even with the knowledge that Smith did not have his medication with him, since Smith could have been miles from the scene at that point.

As to whether a reasonable officer could conclude that Fetterolf and Hall's actions shocked the conscience, we refer to our earlier findings in this case, in which we noted the Third Circuit's characterization of this area of the law as "elusive." We find that a reasonable officer could not have believed that a decision to call out SERT in response to a suspected barricaded gunman was grossly negligent or arbitrary, since the decision was based on a credible evidence that Smith was prone to using firearms. We find that the decision not to allow civilians into the wooded area to search for Smith for safety reasons would have been deemed responsible by a reasonable officer, rather than grossly negligent or arbitrary. In addition, although in retrospect, the use of bloodhounds might have enabled SERT to locate Smith prior to his heart attack, there is no precedent which would lead a reasonable officer to conclude that not doing so was grossly negligent or arbitrary and it could just as easily be argued that the dogs might have scared Smith. We cannot emphasize enough that our inquiry here is whether the officer "acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be construed . . . after the fact." Hunter, 502 U.S. at 228.

As with the other Defendants, we find that a special relationship was established between the state and Smith because Fetterolf and Hall activated and employed SERT for the purpose of containing and arresting Smith. Thus Smith would have been a foreseeable victim of any possible torts committed in such an undertaking.

Finally, we address whether a reasonable officer would have believed that Fetterolf and Hall used their authority to create an opportunity for harm. Plaintiffs rely heavily on the Third Circuit's opinion here to suggest that this is a foregone conclusion.¹⁴ However, we again point out that the Third Circuit considered whether a reasonable jury could have concluded that an opportunity for harm was created in assessing whether Plaintiffs could make out a state created danger claim. The Third Circuit did not analyze the question of qualified immunity and thus did not conclude whether a reasonable officer would have believed that an opportunity for harm was created when SERT was activated.

14 In the last sentence of a full page indented quote from the Third Circuit's opinion in this case, Plaintiffs wrote in their brief that "[n]o reasonable officer could conclude on these fact [sic] that the actions did not amount to `an abuse of official power that shocks the conscience; under the circumstances of this case." (Pl.'s Br. in Opp. at 47.) Since the Third Circuit did not rule on the issue of qualified immunity, we assume the inclusion of this sentence in the indented quote was a mistake and that the statement should have been included in the text of the brief.
However, we wish to clarify here that the Third Circuit did not make such a statement or rule on the availability of qualified immunity in this case.

At the time Fetterolf and Hall activated SERT, they believed Smith to be inside his home. In addition, they had no knowledge at that time that Smith had any type of medical condition which would have led a reasonable officer to believe that an opportunity for harm might be created as a result of activating SERT to form a perimeter around the home. Nor can it be said that a reasonable officer would have believed that the activation of SERT caused Smith to be cut off from aid or left him unable to defend himself. Smith was, at that time, in his home and capable of communicating with police by phone or by coming out of the house. Thus a reasonable officer would not have believed that the activation of SERT in and of itself created an opportunity for harm. Plaintiffs seem to argue that the activation of SERT created an opportunity for harm because it caused Smith to flee his home. However, it appears from the facts that Smith had already left his home by the time SERT arrived. (T. Rodriguez Dep. at 78.)

Once Fetterolf and Hall were notified of Smith's medical history, a reasonable officer might have concluded that the use of the flash bang device and tear gas in the home and shed in order to gain entrance into the shed and home created opportunity for harm. However, as we found with regard to foreseeable and direct causation, Smith was not present when these tactics were employed and thus could not have been harmed by them.

Plaintiffs also argue that an opportunity for harm was created when, after learning Smith's medical history, Fetterolf and Hall failed to recall SERT. Defendants rely on White v. City of Philadelphia for the proposition that Fetterolf and Hall did not create an opportunity for danger for Smith. See 118 F. Supp.2d at 572. However, in White, the court did not only consider the initial cause of the danger, but also whether the officers exerted any control over the individual's environment such that she would not be able to seek aid. Id. In White, police responded to a 911 call from neighbors who heard screaming in the apartment next door. Id. at 567. Police knocked on the door of the apartment and when no one answered, they refused to make a forcible entry and left the scene. Id. The occupant of the apartment was later found murdered and experts believed that she may have been alive at the time police knocked on the door. Id. The court held that the police did not create an opportunity for harm because they did nothing to put her in jeopardy or exert control over the woman's environment such that she was cut off from private sources of aid. Id. at 572.

It appears that the argument may be made here that had SERT withdrawn after learning Smith's medical history, Smith might have been able to return to his home to access his medication. The conclusion that follows from that argument is that Fetterolf and Hall created an opportunity for harm by not ordering SERT to withdraw at that point. Given the facts of this case, we find that a reasonable officer would not have come to that conclusion nor do we think they should have. To so hold puts us in the position of telling police officers that if they believe a suspected gunman has a heart condition and mental problems, they should refrain from restricting his movement and instead allow him to roam free, thereby creating an opportunity for harm to his neighbor and the entire community. This is exactly the type of improper disruption of government that the Supreme Court spoke against in Saucier, As we indicated in our initial discussion of qualified immunity, the issue is whether a reasonable officer would have believed himself to be acting lawfully under the circumstances, not whether "another reasonable, or more reasonable, interpretation of the events can be construed . . . after the fact." Hunter, 502 U.S. at 228. Moreover, if SERT had left the scene at that point, Plaintiffs would, and do, argue that an opportunity for harm would have been created by failing to search for Smith in the woods.

Finally, Plaintiffs argue that Fetterolf and Hall created an opportunity for harm by failing to direct a more thorough search of the woods after finding that Smith had left his wallet, cash, credit cards, medication, and keys and by preventing third parties from assisting in the attempts to communicate with and locate Smith. The facts indicate that SERT conducted a two hour search of the wooded area behind the Smith home. SERT relied on the assistance of a neighbor to locate Smith's hunting hideout from a search helicopter and other areas he might be hiding. In addition, the area beyond the hide was searched.

There is no case law that we know of that indicates that an officer would have thought it unlawful to call off a search after two hours on foot in the immediate area and the use of a helicopter failed to locate Smith. By the time SERT searched the wooded area behind the home, Smith could have been miles away already. In addition, there is no indication under the case law that a reasonable officer would have believed that an opportunity for harm was created when family members and neighbors were barred from participating in the search, particularly since police reasonably believed Smith to be armed and dangerous. Although there is no indication that Fetterolf and Hall were informed that Schools offered his bloodhounds, taking the facts in a most favorable light to Plaintiffs, we will assume for purposes of this motion that they were aware of this possibility. Nonetheless, we do believe that current case law would lead a reasonable officer to conclude that an opportunity for harm was created by failing to use search dogs, since SERT employed other search methods. In retrospect, it appears that the use of dogs might have enabled SERT to locate Smith and take him into custody. However, we must not confuse hindsight with what a reasonable officer would have believed to be a legal course of action at the time of the search.

In conclusion, we find that Fetterolf and Hall are entitled to qualified immunity because a reasonable officer would not have believed that all of the elements of a state created danger were met. No reasonable officer would have believed that their decisions would foreseeably and directly harm Smith, that their conduct was conscience-shocking, or that it created an opportunity for harm. Since a reasonable officer would have believed that only the special relationship element of the state created danger claim had been met, Fetterolf and Hall are entitled to qualified immunity with regard to the state created danger claims.

V. Conclusion

Following an extensive factual and legal analysis, in which we found no genuine issues of material fact and all inferences were taken in a light most favorable to Plaintiffs, we find that Defendants are entitled to summary judgment on all remaining federal claims. We wish to state again that we view the death of Robert Cecil Smith as tragic. Nevertheless, we do not find that, under the applicable law, Defendants are legally responsible for what happened. Defendants Wenger, Weaver, Carbonell, Domon, and Krawczel are dismissed from this suit for lack of participation in the constitutional violations alleged by Plaintiffs. Defendants Marasco, Scianna, M. Rodriguez, T. Rodriguez, Marcantino, Fetterolf, and Hall are dismissed from this suit on the grounds that they are entitled to qualified immunity. Since we dismiss all claims over which we have original jurisdiction, we decline to exercise jurisdiction over Plaintiffs' state law claims. 28 U.S.C. § 1367(c)(3). An appropriate order will follow.

ORDER

AND NOW, this 29^th day of March, 2004, upon consideration of Defendants' Motion for Summary Judgment, filed on February 9, 2004, and Memorandum of Law in Support of Defendants' Motion for Summary Judgment, filed on February 9, 2004; Plaintiffs' Response to Defendants' Motion for Summary Judgment, filed on March 5, 2004, and Plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment, filed on March 5, 2004; and Defendants' Reply to Plaintiffs' Response to Defendants Summary Judgment Motion, filed on March 19th, 2004, it is hereby ORDERED that:

1) Defendants' Motion in GRANTED and judgment will be entered in favor of Defendants on all outstanding federal claims;

2) Plaintiffs' state law claims are dismissed without prejudice to Plaintiffs' right to pursue those claims in state court;

3) This case is CLOSED.

ORDER

AND NOW, this 29^th day of March, 2004, JUDGMENT is hereby ENTERED in favor of Defendants and against Plaintiffs with regard to all outstanding federal claims.