On September 15, 2017, a panel of the Ninth Circuit Court of Appeals, in Woodward v. City of Tucson,[1] reversed the district court’s denial of qualified immunity to officers involved in a fatal shooting. The Court concluded that the decedent did not have a reasonable expectation of privacy while trespassing in an apartment. The Court further found that the law was not clearly established that the officer’s use of deadly force was unconstitutional based on the circumstances confronting the officers at the time.
Background
Late one night in May 2014, Tucson Police Department Officer Allan Meyer was dispatched to an apartment that was supposed to be empty following a report from the landlord that the former tenants were inside. According to his deposition testimony, upon his arrival, Officer Meyer found the metal security door was closed. He learned the security door was unlocked, opened it, and learned that the front door was also unlocked. Officer Meyer called for backup on the grounds that there was an apartment with an open door. Officer Robert Soeder responded. The officers did not see any signs of forced entry.
With their guns drawn, the officers knocked on the front door and announced they were police. When no one answered, they opened the door and entered the apartment. Once inside, they observed belongings taking up approximately half of the room, cleared the living room, and determined no one else was present. They observed a closed door to the apartment’s only bedroom and heard a radio playing inside the room. The officers approached the closed door, orienting themselves on either side. They knocked on the door and announced their presence, but no one responded.
Officer Soeder then opened the door. As summarized in their declarations, when Officer Meyer and Officer Soeder opened the door with their guns drawn, Michael Duncklee immediately advanced toward them, yelling or growling, with a two-foot length of a broken hockey stick raised in a threatening manner. Officer Meyer yelled “Police, stop” but Duncklee continued coming toward him. Officer Meyer fired at Duncklee’s chest. Duncklee ultimately died from his gunshot wounds. Duncklee had been inside the apartment with Amber Watts, the former tenant of the apartment who had been formally evicted prior to the night of the incident.
Duncklee’s mother brought suit under 42 U.S.C. §1983, alleging the officers unlawfully entered the apartment and used excessive force against Duncklee. The officers argued they were entitled to qualified immunity. The district court found that Officer Meyer and Officer Soeder were not entitled to qualified immunity for either the warrantless search of the apartment or their use of force on Duncklee.
On the warrantless search claim, the district court concluded the warrantless entry into the apartment violated the Fourth Amendment because the officers failed to show the entry was reasonable in light of exigent circumstances or consent to enter. On the excessive force claim, the district court concluded that it was clearly established as a matter of law that drawing their guns and letting themselves into the apartment violated a constitutional right to be free from excessive force. The district court also granted in part Plaintiff’s motion for summary judgment, concluding the warrantless search of the apartment violated the Fourth Amendment because there were neither exigent circumstances nor proper consent to enter.
The officers appealed the district court’s denial of qualified immunity and the partial grant of summary judgment to Plaintiff as to the unreasonableness of the entry.
Discussion
The Ninth Circuit Court of Appeals reversed the denial of qualified immunity regarding the warrantless entry into the apartment as well as the seizure of and use of force on Duncklee. It also reversed the partial grant of summary judgment in favor of Plaintiff.
Fourth Amendment Standing
The Court first addressed Plaintiff’s standing to assert a Fourth Amendment violation for the warrantless entry into the vacant apartment, concluding Plaintiff lacked standing. The Court explained that Watts was a trespasser in the apartment, since she had been formally evicted. Since an individual who has been formally evicted has no reasonable expectation of privacy in his or her previous residence, and Watts had been evicted and had her key taken away, she had no reasonable expectation of privacy in the apartment. Because any privacy rights Duncklee had in the apartment had to stem from his relationship with Watts, and Watts had no reasonable expectation of privacy in the apartment, Duncklee similarly had no reasonable expectation of privacy in the apartment on the night he was shot. Therefore, the Court concluded Plaintiff did not have standing to assert a Fourth Amendment claim for the warrantless entry into the apartment.
Qualified Immunity Regarding the Seizure of the Apartment
As to the Defendants’ qualified immunity claim regarding the search of the apartment, the Court explained that whether qualified immunity is warranted is a two-part inquiry: (1) whether the facts alleged by plaintiff make out a violation of a constitutional right, and (2) if so, whether that right was clearly established at the time of the defendant’s alleged misconduct. Because Duncklee had no reasonable expectation of privacy in the apartment, the Court explained that Plaintiff could not establish that the officers violated Duncklee’s Fourth Amendment rights by entering the apartment without a warrant. Therefore, the Court concluded the first part of the qualified immunity inquiry was not satisfied, and reversed the district court’s decision to deny qualified immunity on this claim.
Qualified Immunity Regarding the Seizure of and Use of Force on Duncklee
Because the district court had denied qualified immunity as to the seizure of and use of force on Duncklee citing the Provocation Rule, which was rejected by the Supreme Court in County of Los Angeles v. Mendez,[2] the Court concluded that, in light of Mendez, the district court erred in relying on the Provocation Rule.
The Court explained that the question before it was whether the officers were entitled to qualified immunity as to the seizure of and use of deadly force on Duncklee, which required an inquiry into (1) whether the facts alleged by the plaintiff established that a constitutional right was violated, and (2) whether that right was “clearly established” at the time of the alleged violation. Because a court can consider the two prongs in either order, the Court elected to analyze the second prong first.
The Court noted that when the officers entered the bedroom door with their guns drawn, Duncklee immediately advanced toward them, yelling or growling, with a two-foot length of a hockey stick raised in a threatening manner. The Court concluded that reasonable officers in their positions would not have known that shooting Duncklee violated a clearly established right. In fact, the Court noted, the case law makes clear that use of deadly force can be acceptable in such a situation. Therefore, the Court concluded that even if a constitutional violation occurred, the district court erred in denying qualified immunity on this claim.
HOW THIS AFFECTS YOUR AGENCY
The Ninth Circuit’s decision on qualified immunity for the warrantless entry into the apartment hinged on the fact that Duncklee had no reasonable expectation of privacy in the apartment because he was trespassing. Since he had no reasonable expectation of privacy, no Fourth Amendment violation could be established as to the warrantless entry into and search of the apartment. Given different facts, the issue may have been decided differently.
For claims for qualified immunity, the courts will look at (1) whether the facts alleged by plaintiff make out a violation of a constitutional right, and (2) whether that right was “clearly established” at the time of the defendant’s alleged misconduct. These two prongs may be considered in either order. On the issue of qualified immunity as to the use of deadly force against Duncklee, the Ninth Circuit concluded it was not clearly established that the officers should not have used deadly force on Duncklee under similar factual circumstances.
The Woodward opinion represents another ruling from the Ninth Circuit that complies with the United States Supreme Court decision of White v. Pauly,[3] issued earlier this year. Namely, in assessing whether the law is clearly established that an officer’s actions would constitute a constitutional violation requires a particularized factual analysis and cannot be decided at a high level of generality. Here, the Court noted that prior case law with facts similar to those of Woodward would have led a reasonable officer to conclude that deadly force was justified in such circumstances, rather than the contrary conclusion that it was clearly established that the use of deadly force violated Duncklee’s constitutional rights. This analysis, required by the Supreme Court, will greatly assist law enforcement officers in defending lawsuits challenging their decisions, made in many instances in a split second under life-threatening conditions.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at jrt@jones-mayer.com.
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[1] 2017 U.S. App. LEXIS 17896 (9th Cir. Sept. 15, 2017).
[2] 137 S. Ct. 1539 (2017). Mendez was decided after the district court had issued its opinion in this case. For a detailed discussion relating to Mendez, please see Client Alert Vol. 32, No. 12, authored by James R. Touchstone and available at www.jones-mayer.com.
[3] 137 S. Ct. 548 (2017).