and Submitted March 7, 2019 Portland, Oregon
from the United States District Court for the District of
Idaho D.C. No. 1:16-cv-00359-REB Ronald E. Bush, Magistrate
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
Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges,
and Eduardo C. Robreno, [*] District Judge.
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.
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
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.
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.
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.
GRABER, CIRCUIT JUDGE
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.
AND PROCEDURAL BACKGROUND
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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