Thompson v. Mahre

• Decision Date: 07 April 1997
• Docket Number: No. 94-16912,94-16912
• Parties: 97 Cal. Daily Op. Serv. 2551, 97 Daily Journal D.A.R. 4501 Jeri Lynn THOMPSON, Individually and as Guardian ad Litem for Nicole L. Thompson, a Minor; Nicole Leah Thompson, a Minor; and Joseph Deshetres, Plaintiffs-Appellees, v. Larry Wayne MAHRE, et al., Defendant, and Michael Steen, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 716

110 F.3d 716

97 Cal. Daily Op. Serv. 2551, 97 Daily Journal

D.A.R. 4501

Jeri Lynn THOMPSON, Individually and as Guardian ad Litem

for Nicole L. Thompson, a Minor; Nicole Leah

Thompson, a Minor; and Joseph

Deshetres, Plaintiffs-Appellees, v. Larry Wayne MAHRE, et al., Defendant, and Michael Steen, Defendant-Appellant.

No. 94-16912.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 13, 1996.

Decided April 7, 1997.

Rene Auguste Chouteau, City Attorney, and Patrick C. Wilson, Assistant City Attorney, Santa Rosa, California, for defendant-appellant.

Leroy J. Lounibos, Jr., Lounibos, Lounibos & Tinney, Petaluma, California, for plaintiff-appellee Thompson.

John Houston Scott, Prentice & Scott, San Francisco, California, and Andrew Unetic, Santa Rosa, California, for plaintiff-appellee Deshetres.

Douglas J. Collodel, Esq., Richard H. Nakamura, Jr., Esq., Morris, Polich & Purdy, LLP, Los Angeles, California, for amicus curiae.

Appeal from the United States District Court for the Northern District of California, D. Lowell Jensen, District Judge, Presiding. D.C. No. CV-88-00874-DLJ.

Before: ALARCON, KLEINFELD and HAWKINS, Circuit Judges.

KLEINFELD, Circuit Judge:

This is a qualified immunity case arising out of an early morning execution of a search warrant. Two issues arise, the procedure to be followed, and the exigency exception to the knock and announce requirement.

A. Facts.

Joseph Deshetres, whose house was the object of the search, was a member of a motorcycle gang thought by the police to be violent, and he had a substantial criminal record. The police had probable cause to believe that Deshetres had sold methamphetamine, and would have evidence of his methamphetamine dealing at his house. The search warrant affidavit says that Deshetres had a record of numerous arrests, for narcotics, illegal possession of guns, assault, robbery, and interference with a police officer. The year before the raid on his house, Deshetres was arrested as he robbed a drug dealer with a gun and tried to escape with a hostage.

In the raid that led to the instant case, a large number of police surrounded Deshetres's house at six in the morning. They correctly anticipated that Deshetres and anyone else in the house would be asleep. At the door, an officer hollered that they were police. At the direction of Sergeant Steen, the officer in charge that morning, the officers did not wait long enough so that if Deshetres were going to open the door voluntarily, he could have done so. Instead, the police broke through the door to the house with a battering ram.

Shooting began immediately. Deshetres came out of the bedroom naked, carrying a gun. One of the police shot him. Deshetres did not fire any shots. One officer accidentally shot another police officer. The police also killed the family dog.

Deshetres's girlfriend, Thompson, sat terrified in bed in her T-shirt and panties, holding a baby, while one of the policemen kept a gun pointed at her and told her not to move. Then she was ordered to hand the baby out the window the police officer had broken, and crawl out after it.

Sergeant Steen had decided as the police approached the house not to allow the people in the house time to respond after announcing the police presence. The factor which tipped his judgment was that a white pickup truck drove away from the house as the police approached, so Sergeant Steen thought it likely that Deshetres had been tipped off.

The jury decided in a series of special verdicts that had Sergeant Steen waited another 20 to 23 seconds before ordering forced entry, Deshetres or Thompson would have responded and permitted the Santa Rosa police to enter. As a result of the failure to wait, Sergeant Steen was required to pay Deshetres $82,500 dollars in damages for his being shot and hospitalized nine days and other damages, and $10,000 dollars to Thompson.

B. Procedure.

The procedural history of this case is complex and obscure. The district court decided on qualified immunity early in the litigation, in accord with Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and Act Up!/Portland v. Bagley, 988 F.2d 868 (9th Cir.1993). Sergeant Steen appealed, and we affirmed. Our unpublished disposition is excerpted in the footnote. ¹

We have received an amicus curiae brief in this case from 176 California cities and towns concerned about tort liability for execution of search warrants. The amici urge that the district court erred by taking qualified immunity away from the jury and resolving the facts on summary judgment. Amici cite a Sixth Circuit case, Kennedy v. City of Cleveland, 797 F.2d 297 (6th Cir.1986), for the proposition that denial of defendant's motion for summary judgment on qualified immunity means only that the issue goes to trial on the merits, not that qualified immunity is lost.

There are several puzzling things about the procedure described in our previous memorandum disposition. First, ordinarily there is no such thing as an evidentiary hearing, or findings of fact, on a summary judgment motion. Under Federal Rule of Civil Procedure 56(c), a summary judgment may be granted if there is "no genuine issue as to any material fact," but not if there is a genuine issue. Where there is a genuine issue, trial rather than summary judgment is the means of determining what is true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir.1987). It follows that there is no such thing as a finding of fact on summary judgment. What are sometimes loosely termed "findings" are instead facts as to which there is no genuine issue. See generally Anderson, 477 U.S. at 255 & n. 6, 106 S.Ct. at 2513-14 & n. 6.

The words used by the lawyers and district judge, such as "evidentiary hearing" and "findings of fact," make the procedure they used sound like an evidentiary hearing on a motion to suppress. But even though lawfulness of a search was the subject of the proceeding, there is no summary judgment analogue to that Federal Rule of Criminal Procedure 12(e) device. In a suppression hearing, the question is admissibility of evidence, ordinarily determined by the court outside the presence of the jury. Fed.R.Evid. 103(c), 104(a). In a section 1983 case, the same evidence is typically considered not with regard to admissibility, but rather with regard to whether a reasonable police officer would have believed his or her conduct to be constitutionally permissible. "[T]he determination whether those facts support an objective belief that probable cause or reasonable suspicion existed is ordinarily a question for the court." Act Up!, 988 F.2d at 873. This is a substantive question rather than one of admissibility of evidence. Thus, where there is a genuine issue of fact on a substantive issue of qualified immunity, ordinarily the controlling principles of summary judgment and, if there is a jury demand and a material issue of fact, the Seventh Amendment, require submission to a jury. See, e.g., Collins v. Jordan, 102 F.3d 406, 412 (9th Cir.), as amended, slip op. 3053, 3068-69 (1997); Stivers v. Pierce, 71 F.3d 732, 749-50 (9th Cir.1995). District courts may in their discretion "sparingly and with great care" take oral testimony under Federal Rule of Civil Procedure 43(e) on a summary judgment motion. 10A Charles A. Wright, et al., Federal Practice and Procedure § 2723, at 62 (2d ed.1983). Oral testimony cannot, under Federal Rule of Civil Procedure 56, lead to a finding on a genuinely disputed fact, but only a determination as to which facts are not genuinely disputed. That is probably why the taking of oral testimony on summary judgment is so rare--it would ordinarily be a waste of time.

The procedural aspect of qualified immunity has been problematic to district courts, because of the requirement that qualified immunity be adjudicated as early as possible, ordinarily before trial and substantial discovery, to give the beneficiaries of the doctrine immunity from litigation and not merely from judgment. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) ("a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.... The entitlement is an immunity from suit rather than a mere defense to liability.") (emphasis in original).

Recently the Supreme Court offered a clarification which, had it come down a few years earlier, might have precluded the interlocutory appeal in the case at bar. Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), holds that a defendant in a civil case, "entitled to invoke a qualified immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a 'genuine' issue of fact for trial." Id. at ----, 115 S.Ct. at 2159. The Court in Johnson affirmed a Seventh Circuit dismissal of an interlocutory appeal by police officers who were denied summary judgment on qualified immunity because of a genuine issue of fact. Johnson limits the holding in Forsyth, that a denial of summary judgment is immediately appealable. Where the denial determines only a question of evidence sufficiency, that is, what facts a party may or may not be able to prove at trial, the order is not appealable. If there is no genuine issue of fact, and the determination is one of whether certain given facts show a violation of clearly established law, interlocutory appeal remains available under Mitchell v. Forsyth despite the qualification added by Johnson v. Jones. Id. at ----, ----, 115 S.Ct. at 2155, 2159.

We agree with amici that denial of a defense motion for summary judgment on qualified immunity merely leaves the issue for trial, and does not destroy the defense. Johnson v. Jones, 515 U.S. 304,...