268 F.3d 1179 (10th Cir. 2001), 99-1373, Holland v. Harrington

Docket Nº:99-1373
Citation:268 F.3d 1179
Party Name:SHELBY PAIGE HOLLAND, a minor, by and through her next friend and parent Tessa Kay Overdorff; MARTY SHANE HOLLAND, a minor, by and through his next friend and parent Tessa Kay Overdorff; ANTHONY SCOTT "SCOTTY" HOLLAND, a minor, by and through his next friend and parent, Tonie Pauline Heflin; KRISTY DENISE HOLLAND DANE; RANDY JOE HOLLAND; TESSA KAY
Case Date:October 19, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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268 F.3d 1179 (10th Cir. 2001)

SHELBY PAIGE HOLLAND, a minor, by and through her next friend and parent Tessa Kay Overdorff; MARTY SHANE HOLLAND, a minor, by and through his next friend and parent Tessa Kay Overdorff; ANTHONY SCOTT "SCOTTY" HOLLAND, a minor, by and through his next friend and parent, Tonie Pauline Heflin; KRISTY DENISE HOLLAND DANE; RANDY JOE HOLLAND; TESSA KAY OVERDORFF; TONIE PAULINE HEFLIN; SAMUEL ALLEN HEFLIN, Plaintiffs - Appellees,


ROBIN S. HARRINGTON, individually, and in her official capacity as Undersheriff of La Plata County, Colorado; DUKE SCHIRARD, individually, and in his official capacity as the Sheriff of La Plata County, Colorado; KELLY DAVIS, individually, and in his official capacity as a deputy sheriff of the La Plata County Sheriff's Department, Defendants - Appellants.

No. 99-1373

United States Court of Appeals, Tenth Circuit

October 19, 2001


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Theodore S. Halaby (Sue Ann Haskell, with him on the brief) of Halaby, Cross & Schluter, Denver, Colorado, for Defendants-Appellants.

William E. Zimsky, of Abadie & Zimsky, LLC, Durango, Colorado, for the Plaintiffs-Appellees.

Before HENRY and BRISCOE, Circuit Judges; and JENKINS, Senior District Judge.[*]

JENKINS, Senior District Judge.

Plaintiffs brought this civil rights action under 42 U.S.C. § 1983, alleging that the La Plata County Sheriff's Department SWAT Team subjected them to excessive force in violation of the Fourth Amendment's guarantee that persons be free from unreasonable searches and seizures. Defendants-appellants Robin S. Harrington, Duke Schirard and Kelly Davis appeal the district court's order denying in part their motion for summary judgment based on the defense of qualified immunity. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm in part, reverse in part and remand.


On April 14, 1996 at approximately 2:00 a.m., an altercation occurred outside Virginia's Steakhouse, a restaurant located in La Plata County, Colorado. According to the victims and some witnesses, several men assaulted a group of patrons, throwing them to the ground where they were kicked and beaten, often by several men at once. During their investigation of the incident, La Plata County Sheriff's Department officers learned the names of several suspects, including Samuel "Sammy" Allen Heflin. The Sheriff's Department obtained warrants for Heflin's arrest on misdemeanor assault and reckless endangerment charges, and to search his residence and other buildings located on his property, looking for a black cowboy hat, Marlboro cigarette packages, a bloody shirt, restaurant receipts, and other items believed to be evidence tying Heflin and others to the assaults. The search warrant authorized a search "at any time, day or night," but did not contain language authorizing a "no knock" entry.

Several hours beforehand, Sheriff Duke Schirard authorized the use of the Sheriff's Department SWAT Team, comprised of ten deputy sheriffs led by defendant Kelly Davis, to serve the warrants on the evening of April 16, 1996. Undersheriff Robin Harrington accompanied Sheriff Schirard to the Heflin residence, bringing with her copies of the warrants.

At approximately 8:30 p.m. on April 16, the SWAT Team executed the warrants. Seven SWAT Team members dressed in green camouflage clothing with no identifying markings and hoods showing only their eyes approached the residence, together with defendant Davis.1 Three uniformed deputies were also present.

Randy Joe Holland,18, Marty Shane Holland, 8, and Ray Walker, 24, were playing basketball in the driveway. Three SWAT Team deputies approached rapidly, brandishing weapons; one of them pointed his weapon at the three young men and ordered them to lie face down on the

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ground, and continued pointing his weapon at them as they lay there.2

Three SWAT deputies next encountered Anthony "Scotty" Holland, 14, near the bunkhouse and at gunpoint ordered him to lie on the ground. He was kept in a prone position for nearly 10 minutes.

Also outdoors when the SWAT Team arrived was four-year-old Shelby Paige Holland, who upon seeing the armed deputies in their combat costumes, ran screaming into the residence, pursued by SWAT deputies. According to the plaintiffs, one SWAT deputy pursued the child inside the house, training his laser-sighted weapon on the child's back as evidenced by the tell-tale glowing red dot.

The SWAT deputies then entered the residence, though it remains in dispute whether they knocked and announced their presence, or in any way identified themselves as law enforcement officers.3 At the time that the SWAT Team entered, there were five persons inside: "Sammy" Heflin and his wife Tonie were seated at the dining room table; Kristi Holland Dane was in the kitchen; and Tessa Sliter4 (Shelby Holland's mother) and Helen Kennedy were in a back bedroom.

SWAT deputies ordered Sammy Heflin, Tonie Heflin and Kristi Dane at gunpoint to lie face down on the living room floor.5 SWAT deputies also followed Shelby Holland into the back bedroom and held Tessa Sliter and Helen Kennedy at gunpoint, moving them from the back bedroom into the living room.

All persons found outdoors or inside the residence were held in the living room by SWAT deputies until a "wants and warrants" check was completed on each one. Meanwhile, the deputies conducted a search of the Heflin property.6 When the check was completed, the deputies told them they could leave, with the exception of Sammy Heflin, who was placed under arrest pursuant to the warrant. Everyone else then left the residence and went to the home of Mike Beatty (Tonie Heflin's brother).

Several empty packs of Marlboro Light cigarettes were found in vehicles on the Heflin property, but no bloody clothing was discovered. (Appellant App. at 262.) Plaintiffs allege that nothing found at the Heflin residence on April 16 was offered as evidence at the subsequent trial of Sammy Heflin.

Sammy Heflin was acquitted of the misdemeanor charges.

The district court granted summary judgment in favor of the La Plata County Sheriff's Department, and on qualified immunity grounds in favor of Schirard, Harrington and Davis on plaintiffs' "excessive force" claims arising from the April 16

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raid, except as to the reasonableness of (1) the decision to employ the SWAT Team; (2) the SWAT Team's use of weapons against minor children, and (3) the officers' alleged failure to "knock and announce" their entry into the Heflin residence.


In civil rights actions seeking damages from governmental officials, "those officials may raise the affirmative defense of qualified immunity, which protects 'all but the plainly incompetent or those who knowingly violate the law.' " Gross v. Pirtle, 245 F.3d 1151, 1155 (10th Cir. 2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). The protection of qualified immunity gives officials "'a right, not merely to avoid "standing trial," but also to avoid the burdens of "such pretrial matters as discovery."'" Id. (quoting Behrens v. Pelletier, 516 U.S. 299, 308 (1996) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985))).

Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive. Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The privilege is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Ibid. As a result, "we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).

Saucier v. Katz, 121 S.Ct. 2151, 2155-56 (June 18, 2001) (emphasis in original).

We review de novo the denial of a summary judgment motion raising qualified immunity questions. Gross, 245 F.3d at 1155; Wilson v. Meeks, 52 F.3d 1547, 1551 (10th Cir. 1995). "Because of the underlying purposes of qualified immunity, we review summary judgment orders deciding qualified immunity questions differently from other summary judgment decisions." Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) "After a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff," and the plaintiff "must first establish that the defendant's actions violated a constitutional or statutory right." Id.

A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry. Siegert v. Gilley, 500 U.S. 226, 232 (1991). In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's...

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