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West v. City of Caldwell

United States Court of Appeals, Ninth Circuit

July 25, 2019

Shaniz West, Plaintiff-Appellee,
v.
City of Caldwell; City of Caldwell Police Department; Former Chief Chris Allgood, Defendants, and Doug Winfield, Sergeant, in his official and individual capacity; Alan Seevers; Matthew Richardson, Defendants-Appellants.

          Argued and Submitted March 7, 2019 Portland, Oregon

          Appeal from the United States District Court for the District of Idaho D.C. No. 1:16-cv-00359-REB Ronald E. Bush, Magistrate Judge, Presiding

          Landon S. Brown (argued) and Bruce J. Castleton, Naylor & Hales P.C., Boise, Idaho, for Defendants-Appellants.

          Jeremiah Hudson (argued), Rebecca A. Rainey, and Vaughn Fisher, Fisher Rainey Hudson, Boise, Idaho, for Plaintiff-Appellee.

          Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and Eduardo C. Robreno, [*] District Judge.

         SUMMARY[**]

         Civil Rights

         The panel reversed the district court's order denying qualified immunity to police officers in an action alleging the officers violated plaintiff's rights by coercing her consent to enter her house to search for a suspect and then by shooting tear gas canisters through the windows and causing extensive damage to the house.

         The panel assumed, without deciding, that plaintiff's consent to Officer Richardson was not voluntary. The panel held that given the circumstances, including the amount of time that passed between Richardson's threat to arrest plaintiff and his request for consent, the lack of voluntariness was not so clearly established such that Richardson would have known that plaintiff's consent was not voluntary. Richardson was therefore entitled to qualified immunity on that claim.

          The panel held that assuming the consent was voluntary and defendants exceeded the scope of the consent by shooting tear gas into the house, they were still entitled to qualified immunity. The panel held that given that defendants thought they had permission to enter plaintiff's house to apprehend a dangerous, potentially armed, and suicidal felon barricaded inside, it was not obvious, in the absence of a controlling precedent, that defendants exceeded the scope of plaintiff's consent by causing the tear gas canisters to enter the house in an attempt to flush the suspect out into the open. Officers Seevers and Winefield were therefore entitled to qualified immunity on this claim.

         Addressing the reasonableness of defendants' search, the panel held that given the unusual circumstances, the need for specificity of precedent in the Fourth Amendment context, and controlling cases establishing that officers can sometimes damage a home during a search without violating the occupant's Fourth Amendment rights, this was not an obvious case in which to deny qualified immunity without any controlling precedent clearly establishing that defendants violated plaintiff's rights. Defendants were therefore entitled to qualified immunity on this claim as well.

         Dissenting in part, Judge Berzon stated that in her view defendants Seevers and Winfield were not entitled to qualified immunity on the scope of consent claim.

          OPINION

          GRABER, CIRCUIT JUDGE

         This appeal arises from a SWAT team's search of Plaintiff Shaniz West's house to apprehend her former boyfriend, a gang member who had outstanding felony arrest warrants for violent crimes. Plaintiff sued for extensive damage to her house that resulted from the search. The district court denied qualified immunity to Defendants Matthew Richardson, Alan Seevers, and Doug Winfield, who are officers with the Caldwell, Idaho, police department. We reverse.

         FACTUAL AND PROCEDURAL BACKGROUND[1]

         On a summer afternoon in August 2014, Plaintiff's grandmother called 911 to report that: Plaintiff's former boyfriend, Fabian Salinas, was in Plaintiff's house and might be threatening her with a BB gun; Plaintiff's children also were in the house; and Salinas was high on methamphetamine. The grandmother warned the dispatcher that Plaintiff might tell the police that Salinas was not in the house.

         The police knew that Salinas was a gang member. At the time, he had outstanding felony arrest warrants for several violent crimes. His criminal record included convictions for rioting, discharging a weapon, aggravated assault, and drug crimes. In addition, during a recent high-speed car chase, Salinas had driven his vehicle straight at a Caldwell patrol car, forcing the officer to swerve off the road to avoid a collision. The police also had information that Salinas possessed a .32 caliber pistol.

         Four officers, including Richardson, responded to the 911 call. Richardson was familiar with Salinas' criminal history. After arriving at Plaintiff's house, Richardson called Plaintiff's cell phone several times, but she did not answer. He then called Plaintiff's grandmother, who repeated that Salinas was in Plaintiff's house. She also said that Salinas' sister had been at the house but had left when Salinas arrived. Richardson then called the sister, who confirmed that she had seen Salinas in Plaintiff's house within the last 30 minutes, that he had a firearm that she thought was a BB gun, and that he was high on drugs. Richardson knocked on the front door of the house but received no response.

         While the officers were discussing how to proceed, Sergeant Joe Hoadley noticed Plaintiff walking down the sidewalk toward her house. Hoadley and Richardson approached Plaintiff. Richardson asked Plaintiff where Salinas was; she responded that he "might be" inside her house. Richardson followed up: "Might or yes?" He told Plaintiff that Salinas had a felony arrest warrant, so if Salinas was in the house and she did not tell the police, she could "get in trouble" for harboring a felon. "Is he in there?" At that point, Plaintiff told Richardson that Salinas was inside her house, even though she did not know if he was still there; she had let Salinas into the house earlier in the day to retrieve his belongings, but she left the house while he was still there. Plaintiff felt threatened when Richardson told her that she could get in trouble if she were harboring Salinas, because Plaintiff's mother had been arrested previously for harboring him.

         After Plaintiff told Richardson that Salinas was in the house, Richardson walked away to confer with the other officers. They discussed whether to contact the SWAT team, but Plaintiff did not know that the SWAT team might become involved. Richardson returned to Plaintiff about 45 seconds later. He said: "Shaniz, let me ask you this. Do we have permission to get inside your house and apprehend him?" Plaintiff nodded affirmatively and gave Richardson the key to her front door. Plaintiff knew that her key would not open the door because the chain lock was engaged, but it is unclear from the record whether Richardson also knew that. After handing over the key, Plaintiff called a friend to pick her up, and she left in the friend's car.

         Hoadley then called the local prosecutor's office and reported to the on-call prosecutor that Plaintiff consented to having officers enter her house to arrest a person who was subject to a felony arrest warrant. The prosecutor told Hoadley that the officers did not need to obtain a search warrant.

         Hoadley next contacted Seevers, the SWAT Commander, to request assistance in arresting a felon who was barricaded inside a house and who might be armed and on drugs. Seevers, in turn, notified Winfield, the SWAT Team Leader, of the request. Seevers told Winfield that Salinas' family reported that he was in Plaintiff's house with a firearm (described as a BB gun) and that he was suicidal. Winfield contacted Hoadley for more information. Hoadley told him that Salinas had felony arrest warrants, that Salinas was a suspect in a gun theft and that not all the stolen firearms had been recovered, that Salinas was suicidal, and that all signs indicated that Salinas was in Plaintiff's house. Hoadley also told Winfield that Plaintiff had given her consent for officers to enter her house to effect an arrest and that the on-call prosecutor had confirmed that the officers did not need a warrant.

         The SWAT team met at the local police station to retrieve their tactical gear and establish a plan. Winfield, who created the plan, hoped to get Salinas to come out of the house without requiring an entry by members of the SWAT team. The plan had three stages: (1) contain Plaintiff's house and issue oral commands for Salinas to come out; (2) if stage one failed, introduce tear gas into the house to force Salinas out; and (3) if stages one and two failed, enter and search the house for Salinas after the tear gas dissipated. Seevers reviewed and approved the plan, which conformed to commonly accepted police practices.

         While the SWAT team prepared at the station, the officers at Plaintiff's house continued to watch for Salinas and to update the SWAT team over the radio. One officer reported hearing movement in the house, and another said that he heard the deadbolt latch while he was standing near the front door.

         The SWAT team arrived at Plaintiff's house late in the afternoon. They made repeated announcements telling Salinas to come out of the house, but he did not appear. After waiting about 20 minutes, members of the team used 12-gauge shotguns to inject tear gas into the house through the windows and the garage door. After deploying the tear gas, the SWAT team continued to make regular announcements directing Salinas to come out of the house, but still he did not appear. After about 90 minutes the team entered the house. They used Plaintiff's key to unlock the deadbolt on the front door, but they could not enter because of the chain lock. They then moved to the back door, which they opened by reaching through the hole created earlier by shooting the tear gas through the back door's window. The SWAT team searched the entire house without finding Salinas.

         Plaintiff and her children could not live in the house for two months because of the damage caused by the search, including broken windows and tear-gas-saturated possessions. The City of Caldwell paid for a hotel for Plaintiff and her children for three weeks and paid her $900 for her damaged personal property. Plaintiff then filed this action, seeking damages and alleging claims for unreasonable search, unreasonable seizure, and conversion.

         As relevant here, Defendants moved for summary judgment after the close of discovery, seeking qualified immunity. The district court denied Seevers and Winfield's motion on the ground that it is "well-established that a search or seizure may be invalid if carried out in an unreasonable fashion." The court denied Richardson's motion on the ground that, if he had not obtained ...


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