NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

No. 05-1623

LAURA GRAYER;

M A R IE FLOYD

v. T O W N S H IP OF EDISON; EDISON POLICE DEPARTMENT;

D E T E C T IV E EDWARD WHEELER; DETECTIVE SGT. MARK ANDERKO;

D E T E C T IV E RICHARD BUCK; OFFICER DAVID STERN;

D E T E C T I V E ANDY NAGY, JR.; OFFICER KOLE;

P O L IC E CHIEF EDWARD COSTELLO;

J O H N DOE, 1-10, said names being fictitious

Edward Wheeler,

Appellant

No. 05-1624

LAURA GRAYER;

M A R IE FLOYD

v. T O W N S H IP OF EDISON; EDISON POLICE DEPARTMENT;

D E T E C T IV E EDWARD WHEELER; DETECTIVE SGT. MARK ANDERKO;

D E T E C T IV E RICHARD BUCK; OFFICER DAVID STERN;

D E T E C T I V E ANDY NAGY, JR.; OFFICER KOLE;

P O L IC E CHIEF EDWARD COSTELLO;

J O H N DOE, 1-10, said names being fictitious

Mark Anderko,

Appellant

LAURA GRAYER; M A R IE FLOYD v. T O W N S H IP OF EDISON; EDISON POLICE DEPARTMENT; D E T E C T IV E EDWARD WHEELER; DETECTIVE SGT. MARK ANDERKO; DETECTIVE RICHARD BUCK; OFFICE DAVID STERN; D E T E C T I V E ANDY NAGY, JR.; OFFICER KOLE; P O L IC E CHIEF EDWARD COSTELLO; J O H N DOE, 1-10, SAID NAMES BEING FICTITIOUS Township of Edison, Appellant APPEAL FROM THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEW JERSEY D .C . Civil 02-cv-02969 D is tric t Judge: The Honorable Jose L. Linares Submitted Under Third Circuit LAR 34.1(a) J u n e 27, 2006 Before: BARRY, VAN ANTWERPEN and SILER,* Circuit Judges (Opinion Filed: August 1, 2006) O P IN IO N BARRY, Circuit Judge A p p e lle e s Laura Grayer and Marie Floyd brought suit in the United States District C o u rt for the District of New Jersey pursuant to 42U.S.C. § 1983 against a host of d ef en d an ts , including appellants Detective Sgt. Mark Anderko and Detective Edward W h e e le r of the Township of Edison police department. At the summary judgment stage, a p p e lla n ts asserted the defense of qualified immunity, which the District Court rejected.

We will reverse the judgment of the District Court.

I.

W e derive our jurisdiction from 28U.S.C. § 1291. Although the claims against A n d e rk o and Wheeler are before us on denials of summary judgment, which are not g e n e ra lly appealable, this appeal is properly before us because the issue in the District C o u rt was appellants' entitlement to qualified immunity. Qualified immunity protects o f f icia ls from suit, not just liability, and thus "is effectively lost" when a case proceeds to trial. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see McKee v. Hart, 436 F.3d 165, 1 6 8 -6 9 (3d Cir. 2006). Therefore, "[w]hen a defendant moves for summary judgment b a se d on qualified immunity, the denial of the motion may be appealed immediately u n d e r the collateral-order doctrine. . . ." Forbes v. Twp. of Lower Merion, 313 F.3d 144, 1 4 7 (3d Cir. 2002).1 " W e exercise plenary review over the District Court's conclusions of law in its q u a lif ie d immunity analysis," McKee, 436 F.3d at 169, and "we may `review whether the se t of facts identified by the district court is sufficient to establish a violation of a clearly estab lish ed constitutional right,' but we may not `consider whether the district court c o rre c tly identified the set of facts that the summary judgment record is sufficient to p ro v e .'" Forbes, 313 F.3d at 147 (quoting Ziccardi v. City of Philadelphia, 288 F.3d 57, 6 1 (3d Cir. 2002)).

II.

B e c au s e we write primarily for the parties, we will, quite literally, cut right to the c h a se . On June 22, 2000, Edison police officers, led by appellant Anderko, were looking f o r and eventually spotted Thomas Raiford, for whom they had an arrest warrant for a g g ra v a te d assault. Upon seeing the police, Raiford ran and the officers gave chase.

Raiford entered the back of a nearby apartment and officers followed him in, but lost s ig h t of him. Raiford had run out the front of the apartment and could not be located.

Anderko had reason to believe Raiford thereafter entered the nearby apartment of R a if o rd 's aunt, appellee Laura Grayer. Anderko ordered three officers to the rear of the b u ild in g and he, along with two other officers, including appellant Wheeler, stayed in the f ro n t. Shortly thereafter, Grayer returned home to find the police surrounding her b u ild in g . Anderko approached her, explained the situation, and requested her consent to e n ter her apartment to arrest Raiford. Grayer contends that she gave Anderko, and only A n d e rk o , consent to enter.

Grayer led Anderko, Wheeler, and one other police officer to her front door.2 She u n lo c k e d the door and entered the apartment first, calling up the stairs for Raiford.

Raiford responded, and Anderko instructed him to come down the stairs with his hands u p . Raiford complied, and Anderko and the other officer proceeded to detain him at the f o o t of the stairs, near the front door.

At that point, Wheeler began walking toward the adjoining kitchen in the rear of th e apartment, where the back door was located, to notify the officers in the rear that R a if o rd had been detained. Before he was able to do so, however, Grayer got between W h e e le r and the door and told him not to open it.3 Grayer testified that Wheeler pushed h e r aside in order to reach the door. Upon opening the door, additional officers entered th e apartment, along with two bystanders.4 Grayer testified that, at this point, Wheeler a g a in pushed her away with his arm and twisted her arm behind her back to handcuff her.

She was arrested, but, she testified, was not informed prior to the application of the cuffs th a t she was under arrest.5 W h ile these events in the kitchen were taking place, Marie Floyd, who lived next d o o r to Grayer and was her foster sister, came to Grayer's apartment to see what was h a p p e n in g . Police officers at the front of the house let her and another sister, Alma, enter the apartment. Floyd proceeded toward the rear of the apartment but, she testified, before s h e could make it into the kitchen, Wheeler punched her in the chest without provocation.

Floyd fell backward and was caught by Alma.

Grayer and Floyd filed suit in the United States District Court on June 21, 2002 a g a in s t the Township of Edison, the Edison Police Department, the chief of police, W h e e le r, Anderko, and the other police officers present on June 22, 2000, raising a n u m b e r of federal and state causes of action. For our purposes, it suffices to say that a p p e lle e s' § 1983 causes of action against Anderko and Wheeler were based on a p p e lle e s ' claims, inter alia, that the entry into Grayer's home and the use of force against th e m violated the Constitution. The District Court denied appellants' assertions of q u a lif ie d immunity, and this appeal followed.

I I I.

" G o v e rn m e n t officials performing discretionary functions are `shielded from lia b ility for civil damages insofar as their conduct does not violate clearly established statu tory or constitutional rights of which a reasonable person would have known.'" S h a r r a r v. Felsing, 128 F.3d 810, 826 (3d Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U .S . 800, 818 (1982)). Courts must inquire "whether a reasonable officer could have b e lie v e d that his or her conduct was lawful, in light of the clearly established law and the in f o rm a tio n in the officer's possession." Id. Ultimately, if the officers here "`reasonably b u t mistakenly' conclude[d] that their conduct comport[ed] with the requirements of the F o u r th Amendment," they "are entitled to immunity." Id. (quoting Hunter v. Bryant, 502 U .S . 224, 227 (1991) (per curiam)). For the reasons we outline below, Anderko and W h e e le r are entitled to immunity.

A.

T h e District Court denied Anderko's motion for summary judgment, determining th a t Anderko, "by executing a warrantless search and exceeding the bounds of Ms.

G rayer's consent, knowingly violated settled law." (Dist. Ct. Op. at 7, JA16a.) Moreover, the District Court preserved the claims of supervisory liability against Anderko b a se d on his alleged failure to communicate to Wheeler the limitations Grayer placed on c o n s e n t. (Id. at 14-15, JA23a-24a.) We disagree with both decisions.

" It is axiomatic that the `physical entry of the home is the chief evil against which th e wording of the Fourth Amendment is directed.'" Welsh v. Wisconsin, 466 U.S. 740, 7 4 8 (1984) (quoting United States v. United States District Court, 407 U.S. 297, 313 (19 7 2 )). Therefore, "[w]arrantless searches and seizures inside someone's home . . . are p re su m p tiv e ly unreasonable unless the occupants consent or probable cause and exigent c irc u m s ta n c es exist to justify the intrusion." United States v. Coles, 437 F.3d 361, 365 (3 d Cir. 2006) (emphasis in original). One example of exigent circumstances is "hot p u rs u it of a suspected felon." Id. at 366.

Here, in a separate opinion deciding the Township's motion for summary ju d g m e n t, the District Court found "that a fleeing and potentially dangerous suspect s o u g h t refuge in Ms. Grayer's apartment." (Dist. Ct. Letter Order and Op. at 2, A26a.) T h e Supreme Court has made clear that "a suspect may not defeat an arrest which has b e e n set in motion in a public place, and is therefore proper . . . , by the expedient of e sc a p in g to a private place." United States v. Santana, 427 U.S. 38, 43 (1976). We need n o t determine whether the entry of Grayer's home would fall squarely within the hot p u rs u it exception to the warrant requirement. Police officers had been chasing Raiford, f o r whom they had an arrest warrant, lost sight of him, had reason to believe he was in G ra ye r's apartment, and, apparently, saw him from the rear of the building at or around th e time Anderko and Wheeler entered the building. We conclude, based on the facts id e n tif ie d by the District Court, that an objectively reasonable police officer could believe that the pursuit of Raiford into Grayer's home, even in the absence of the owner's c o n s e n t, was constitutional. Cf. Saucier v. Katz, 533 U.S. 194, 206 (2001) ("[E]ven if a c o u rt were to hold that the officer violated the Fourth Amendment . . . Anderson still o p e ra tes to grant officers immunity for reasonable mistakes as to the legality of their a c t io n s . " ) .

M o re o v e r, here, "Anderko sought Ms. Grayer's consent to enter her apartment and a p p re h e n d the suspect," and "some manner of consent was granted." (Dist. Ct. Letter O rd e r and Op. at 2, JA26a.) "Under such a scenario, at least from the perspective of the o f f ic e rs on the ground, the Fourth Amendment issues are, at best, nuanced." (Id. at 3, J 2 7 a ) In short, it is not at all clear that Anderko was mistaken in believing he could enter G ra ye r's house without a search warrant, and if he were, that mistake ­ in light of the e x ig e n c y and at least a measure of consent ­ was reasonable. Cf. Hunter, 502 U.S. at 228 (" [ T ]h e court should ask whether the agents acted reasonably under settled law in the c irc u m s ta n c es , not whether another reasonable, or more reasonable, interpretation of the e v e n ts can be constructed five years after the fact."); Forbes, 313 F.3d at 148 ("If an o f f ic ia l could have reasonably believed that his or her actions were lawful, the official rec eive s immunity even if in fact the actions were not lawful.").6 B.

T u rn in g to Grayer's claim of excessive force against Wheeler, the District Court f o u n d that Grayer's testimony that Wheeler "intentionally pushed her out of his way and k n o c k e d her onto the kitchen table, all before indicating that he was arresting her," was " su f f ic ie n t, assuming that it is truthful, to establish objectively unreasonable force." (Dist. Ct. Op. at 8, JA17a (emphasis removed).) Again, we disagree.

W h e e le r was permissibly in the house to effectuate the arrest of Raiford. Once th e re , he was permitted to take reasonable measures to ensure the safety of officers and th e suspect, including entering the adjoining kitchen and opening the back door.

Cf. Maryland v. Buie, 494 U.S. 325, 327, 334 (1990) (permitting "a quick and limited s e a rc h of premises, incident to an arrest and conducted to protect the safety of police o f f ice rs or others" which includes searching "closets and other spaces immediately ad joining the place of arrest from which an attack could be immediately launched").7 G ra ye r's own account of what happened in the kitchen makes clear that she a tte m p te d to intercept Wheeler and prevent him from opening the back door. By doing s o , she interfered with his attempt to secure the house and complete the arrest of Raiford.

He, therefore, was permitted to use a reasonable amount of force to get to the door if n e c es s a ry. Similarly, the force used by Wheeler in the moment before and while cuffing G ra ye r does not move his conduct outside the protection of qualified immunity. "Not ev ery push or shove, even if it may later seem unnecessary in the peace of a judge's c h a m b e rs , violates the Fourth Amendment." Graham v. Connor, 490 U.S. 386, 396 (19 8 9 ) (citation and internal quotation marks omitted).

H e re , by all accounts, Wheeler was "forced to make split-second judgments ­ in c irc u m s ta n c es that [were] tense, uncertain, and rapidly evolving ­ about the amount of f o rc e that [was] necessary in [the] particular situation." Id. at 396-97. The circumstances a s identified by the District Court permitted the officer to apply a measure of force to re a ch the back door and secure those who attempted to interfere. The force applied here, w e note, inflicted no injury upon Grayer. While "[w]e do not agree that the absence of p h ys ic a l injury necessarily signifies that the force has not been excessive, . . . the fact that th e physical force applied was of such an extent as to lead to injury is indeed a relevant f a cto r to be considered as part of the totality." Sharrar, 128 F.3d at 822. In this case, b a se d on the assertions of Grayer and the facts identified by the District Court, Wheeler u s e of force was objectively reasonable under the circumstances.

C.

S o , too, was Wheeler's use of force against Floyd in the course of yet another splits e c o n d judgment it is not disputed he was required to make in an undisputedly brief but tu m u ltu o u s situation. It bears mention, for what it is worth, that Floyd's claim of e x c es s iv e force occupies but one paragraph (¶ 113) of the 128-paragraph and more than th irty-p a g e Statement of Facts appellees have presented in their brief to this Court.

As noted above, Floyd contends that as she was approaching the kitchen, Wheeler, a p p a re n tly out of the blue, punched her with a closed fist in the chest, sending her b a c k w a rd s .8 According to Wheeler, as he was cuffing Grayer, a heavy-set black woman h e did not know was "pulling on my arms to try to free Mrs. Grayer," JA 333a-34a, and, a s the District Court explained Wheeler's version of the facts, "he merely used his o u ts tre tc h e d arm to shove her out of the way." (Dist. Ct. Op. at 4, JA 13a.) F lo yd would have us find that terminology matters, and that because she says it w a s a "punch" (and not a "push or shove"), "historical facts material to" the question of " w h e th e r the actions of [Wheeler] were objectively reasonable" are disputed. See S h a r r a r , 128 F.3d at 828. We decline to find that the terminology matters here.

Under the circumstances of this case, the mere use of the word "punch" is simply n o t enough to take this claim to a jury. Most importantly, Grayer, who clearly has her o w n complaints about Wheeler, saw the incident and confirms the essential parts of W h e e le r's account of what happened with Floyd. She agrees with him that, as she was b e in g cuffed, Floyd was walking up, apparently from behind Wheeler. Wheeler pushed h is arm out to the side and "shoved her back," she lost her balance, and Alma caught her.

Grayer, who saw what happened, does not remember any punch, much less a punch with a closed fist. JA 414a. One use of a word belied by all the relevant evidence of that one b rie f contact is simply not enough to call into dispute the objectively reasonable action W h e e le r took vis-a-vis Floyd during the potentially explosive situation in the kitchen.

IV.

F o r the foregoing reasons, we will reverse the denial of Anderko's and Wheeler's m o tio n s for summary judgment. Furthermore, we will dismiss the appeal by the T o w n sh ip of Edison for lack of jurisdiction, and remand for further proceedings before th e District Court.

* The Honorable Eugene E. Siler, Senior Circuit Judge, United States Court of Appeals f o r the Sixth Circuit, sitting by designation.

1 The District Court also denied the Township's motion for summary judgment on the N e w Jersey Tort Claims Act claims brought against it, a denial the Township appeals. We will not consider the Township's appeal. We have recognized that "`the right to an in te rlo c u to ry appeal from the denial of a claim of absolute or qualified immunity under s ta te law can only exist where the state has extended an underlying substantive right to be f re e from the burdens of litigation arising from acts taken in the course of [official] d u ties.'" Brown v. Grabowski, 922 F.2d 1097, 1106-07 (3d Cir. 1990) (quoting Marrical v . Detroit News, Inc., 805 F.2d 169, 172 (6th Cir. 1986)) (alteration in Brown). "New J e rs e y confers no such right." Rivas v. City of Passaic, 365 F.3d 181, 193 (3d Cir. 2004) (" [ W ]e lack jurisdiction to consider [the police officers'] arguments that the District C o u rt erred in denying their defense of qualified immunity under New Jersey's Tort C laim s Act."); cf. Brown, 922 F.2d at 1108 ("The Tort Claims Act's dominant c o n sid e ra tio n of immunity and policy of deterrence are equally consistent . . . with the v iew that the Act was intended to shield public officials and entities only from ultimate lia b ility ­ and not initially from suit.") (emphasis in original). We will, therefore, dismiss th e Township's appeal for lack of jurisdiction.

2 The record indicates that just prior to the time the officers entered the front of the a p a rtm e n t with Grayer they were notified by the officers in the rear that Raiford could be s e e n inside. (See Anderko Dep. at 97-98, JA163a-64a; Wheeler Dep. at 116, JA307a (" R ig h t about [the time Grayer was opening the door] I guess [Raiford] was talking to so m e of the officers out back so we knew for sure now at this point that he was in th e re ." ); Kole Dep. at 64, JA569a; Stern Dep. at 34-35, JA643a.) Indeed, Anderko was q u estio n ed during state court proceedings about Raiford's communications with officers in the rear of the apartment prior to Anderko's entry. (JA949a-50a ([Q]: "Is it fair for me to say that Raiford verbally gave himself to the detectives in the rear of the building?" [A n d erk o ]: "Raiford made a verbal acclamation to the detectives to the rear. . . .").) 3 Wheeler claimed that Grayer used force in her attempts to prevent him from opening the door.

4 See Grayer Dep. at 32, JA410a ("He pushed me to the side and opened the door and let the other cops in.").

5 Meanwhile, Raiford was yelling at the officers something to the effect of "Don't hurt m y aunt." Moreover, additional individuals had been allowed through the back door and w ere present when Wheeler arrested Grayer.

6 Moreover, there is no indication that Anderko was personally involved or actually k n e w and acquiesced in Wheeler's alleged violative activities in the kitchen. See R o b in s o n v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997). He therefore is e n titled to summary judgment on the supervisory liability claims against him as well.

7 Dist. Ct. Op. at 12, JA21a (". . . it is certainly reasonable for police officers to secure an unfamiliar area incident to an ongoing arrest . . . ").

8 While, of course, credibility is not for us to decide, it does strike us as somewhat im p lau sib le that Wheeler's first line of defense against a woman in her mid-sixties would b e a closed fist punch to the chest.