103 F.3d 144 (10th Cir. 1996), 95-1454, Lopkoff v. Slater

• Citation: 103 F.3d 144
• Party Name: Patricia LOPKOFF, Vincent C. Todd, Plaintiffs-Appellees, v. Gregg SLATER, Patrick Wilson, Mary Sutton, Steve Evans, Defendants-Appellants,and City of Lakewood, Defendant.
• Case Date: December 06, 1996
• Court: United States Courts of Appeals, U.S. Court of Appeals — Tenth Circuit

Page 144

103 F.3d 144 (10th Cir. 1996)

Patricia LOPKOFF, Vincent C. Todd, Plaintiffs-Appellees,

v.

Gregg SLATER, Patrick Wilson, Mary Sutton, Steve Evans, Defendants-Appellants,and

City of Lakewood, Defendant.

No. 95-1454.

United States Court of Appeals, Tenth Circuit

December 6, 1996

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA10 Rule 36.3 regarding use of unpublished opinions)

96 CJ C.A.R. 2000

Before BALDOCK and BRISCOE, Circuit Judges, and LUNGSTRUM, ^[**] District Judge.

ORDER AND JUDGMENT ^[*]

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendants-appellants, officers with the City of Lakewood police department, appeal the district court's order denying their motion for summary judgment based on the defense of qualified immunity. Plaintiffs claim that defendants violated their rights secured by the First and Fourth Amendments when they entered plaintiff Lopkoff's apartment on two occasions. Defendants contend that they are entitled to qualified immunity because they entered Lopkoff's apartment only to ensure that her children were safe, and did not charge her with any crime.

I.

Plaintiffs' claims are based on two incidents occurring in 1993 in which defendants entered Lopkoff's apartment pursuant to complaints that she was not caring for her children properly. The undisputed facts establish that on April 21, 1993, defendant Slater and another officer arrived at Lopkoff's apartment in response to a telephone report from her sister that she was intoxicated and unable to care for her three-year-old son. The child opened the apartment door, thus permitting the officers to see into the apartment and observe that it was cluttered with clothing, boxes, papers and bags. Lopkoff met the officers just inside the door and replied "O.K." to the officers' advisement that they were there to investigate the welfare of her son. Lopkoff, who is hearing impaired, then requested permission to call an interpreter and her attorney. Slater informed her that she could do so, to which Lopkoff replied, "no." Slater smelled alcohol on Lopkoff's breath. Slater followed Lopkoff around her apartment, for reasons of officer safety. At some point another officer arrived and took photographs of the inside of Lopkoff's apartment. The officers also searched the inside of Lopkoff's refrigerator. During the search, Lopkoff's attorney, plaintiff Todd, arrived. He informed defendants of his opinion that the search of Lopkoff's apartment was improper absent a search warrant. Defendants dispute Todd's statement that the officers informed him that they were investigating the scene of a child abuse crime.

The next incident occurred on May 11, 1993, pursuant to a telephone call to the police by Lopkoff's sister or daughter alleging that Lopkoff was abusing her children. When defendants Slater and Wilson arrived at the apartment building, Lopkoff's daughter was in the parking lot. She stated that her mother had been drinking, and had hit her on the shoulder and forearm. Slater and Wilson then went to Lopkoff's apartment where she was meeting with Todd. Lopkoff instructed Todd not to let the officers into her apartment. Todd informed the officers that they could not talk with Lopkoff until an interpreter arrived. The officers then left, but returned shortly, stating that they could wait no longer to speak with Lopkoff. Lopkoff's brother was present, and the children were with him outside the apartment. At some point defendants Sutton and Evans came on the scene. According to Todd, he was threatened with arrest if he did not step aside to permit the officers to enter the apartment to pursue their criminal investigation. Defendants' version is that Todd was informed that if he did not stop interfering with their efforts to speak with Lopkoff, he would be charged with interference. Thereafter, defendants Slater, Wilson, Sutton and Evans entered Lopkoff's apartment, at which point Lopkoff left the apartment. The officers then left, closing and locking the front door. Plaintiffs were locked out for three hours until a professional locksmith unlocked the door.

II.

We first examine our jurisdiction to consider this appeal. We requested briefs from the parties to address the recent decision of Johnson v. Jones, 115 S.Ct. 2151 (1995), holding that interlocutory jurisdiction does not lie to review a denial of qualified immunity when the denial is based on the existence of a genuine issue of material fact. 115 S.Ct. at 2156, 2159. "Johnson reaffirmed that summary-judgment determinations are appealable when they resolve a dispute concerning an 'abstract issu[e] of law' relating to qualified immunity, typically, the issue whether the federal right allegedly infringed was 'clearly established.' " Behrens v. Pelletier, 116 S.Ct. 834, 842 (1996) (citations omitted). Accordingly, we have jurisdiction to review the district court's determinations regarding whether the law was clearly established. Mick v. Brewer, 76 F.3d 1127, 1133 (10th Cir.1996). "We lack jurisdiction, however, to the extent that [defendants] seek interlocutory review of the district court's ruling that genuine disputes of fact precluded summary judgment based on qualified immunity." Id. Accordingly, to the extent that defendants claim that Lopkoff consented to the first search, ¹ we are without jurisdiction to review the district court's conclusion that material disputed facts exist regarding whether Lopkoff consented.

Further, we do not have the benefit of defendants' affidavits because they were not included in appellants' appendix. See Rios v. Bigler, 67 F.3d 1543, 1553 (10th Cir.1995)(appellant has responsibility to provide proper record on appeal). Therefore, we do not address the claim that the evidence establishes that defendants Sutton and Evans remained outside Lopkoff's apartment.

Plaintiff Todd's claims are not before us in this appeal. The district court granted defendants' motion for summary judgment on Todd's First Amendment...