29 F.3d 1355 (9th Cir. 1994), 92-16751, Alexander v. City and County of San Francisco

Docket Nº:92-16751.
Citation:29 F.3d 1355
Party Name:Julia ALEXANDER, as executor of the estate of Henry O. Quade, Jr., deceased, Plaintiff-Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Frank Jordan, John Willett, Timothy Hettrich, Joaquin Santos, Matthew Castagnola, David Seid, Bernard Sullivan, Richard Lee, David Shinn, James Dachauer, Patrick White, Joseph Kennedy, Richard Heller, Steven Gough,
Case Date:July 08, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1355

29 F.3d 1355 (9th Cir. 1994)

Julia ALEXANDER, as executor of the estate of Henry O.

Quade, Jr., deceased, Plaintiff-Appellant,

v.

CITY AND COUNTY OF SAN FRANCISCO, Frank Jordan, John

Willett, Timothy Hettrich, Joaquin Santos, Matthew

Castagnola, David Seid, Bernard Sullivan, Richard Lee, David

Shinn, James Dachauer, Patrick White, Joseph Kennedy,

Richard Heller, Steven Gough, Edward St. Andre, Nicholas

Borthne, Richard Cunningham, Albert Chinn and Michael

Lennon, Defendants-Appellees.

No. 92-16751.

United States Court of Appeals, Ninth Circuit

July 8, 1994

Page 1356

[Copyrighted Material Omitted]

        Argued and Submitted Feb. 11, 1994.

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        Monti J. Stegen, Kagel & Stegen, San Francisco, CA, for plaintiff-appellant.

        Jean S. Fraser, Deputy City Atty., San Francisco, CA, for defendants-appellees.

        Appeal from the United States District Court for the Northern District of California.

        Before: FLETCHER, KOZINSKI and TROTT, Circuit Judges.

        Opinion by Judge FLETCHER; Concurrence by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge TROTT.

        FLETCHER, Circuit Judge:

        This civil rights action is brought by the executor of the estate of Henry Quade, who was shot dead in his home by San Francisco police officers. Plaintiff alleges that Quade's Fourth Amendment rights were violated (1) because the officers entered Quade's home for the purpose of arresting him, but had only an administrative inspection warrant in their possession; and (2) because the officers used excessive force in their entry, thus precipitating the escalation of force which ended in the fatal shooting. Plaintiff also seeks to hold the City and County of San Francisco liable for failure to adequately train the officer in command of the operation.

        The district court granted summary judgment for all defendants, holding (1) that Quade was never arrested, and that any detention of Quade by the officers was lawful; and (2) that the officers were entitled to qualified immunity on the excessive force claim. The court also held that because all of the individual defendants were entitled to summary judgment, no liability could attach to the municipality.

        We reverse the summary judgment in favor of the individual defendants and affirm the judgment in favor of the municipality, although on different grounds than those relied on by the district court.

        BACKGROUND

A. Factual Background

        In June 1990, the San Francisco Public Health Department received a complaint from a neighbor of Henry Quade that sewage was seeping from Quade's basement into the street and into the foundation of the neighbor's house, that a foul odor was coming from Quade's house, and that Quade's backyard was filled with refuse.

        Health Department officials went to Quade's home to inspect, but no one came to the door. The Health Department sent Quade a Notice to Abate Nuisance, and contacted other interested city agencies. When Health Department officials found the situation unchanged, they summoned Quade to an abatement hearing, which he did not attend. They summoned him to a second and a third abatement hearing, which he did not attend either. They summoned him to a hearing before the Director of Public Health, which once again he did not attend. After his failure to attend the hearing before the director, they sent Quade a letter, and then another letter, requesting him to make an appointment for an inspection of his property. When he did not respond, officials applied to a municipal court judge for an inspection warrant.

        The inspection warrant was issued pursuant to Title 13 of the California Code of Civil Procedure, which provides that upon a showing of cause, a court shall command a state or local official

to conduct any inspection required or authorized by state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor, or zoning.

        Cal.Code Civ.Proc. Sec. 1822.50. "Cause" exists if, inter alia, "there is reason to believe that a condition of nonconformity exists with respect to the particular place." Cal.Code Civ.Proc. Sec. 1822.52. The warrant in this case was issued "for the purpose of discovering if the subject property complies with the Health, Building, Housing, Plumbing, Electrical, City Planning and Fire Codes, and any other applicable code regulations."

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        On September 21, 1990, eight days after the warrant issued, Inspector Albert Chinn of the Public Health Department wrote to Quade, advising that Chinn had an inspection warrant; that he would inspect Quade's property on September 28; and that Quade would be required to be there. Chinn also stated that if Quade failed to allow inspection, he would obtain a forcible entry warrant. Chinn invited Quade to contact him to set a different date if more convenient.

        Quade did not respond. Nor did Quade respond to representatives of various other city agencies (e.g., Adult Protective Services, outreach programs) who, alerted by the Health Department, had come to his house to investigate. On September 28, the date of the scheduled inspection, Quade once again failed to come to the door when the inspector appeared.

        On October 3, 1990, the municipal court judge issued a forcible entry warrant, which authorized entry "for the purpose of discovering if the subject property complies with the Health, Building, Housing, Plumbing, Electrical, City Planning and Fire Codes, and any other applicable code regulations." The warrant also provided that "[s]aid inspection may be made by means of forcible entry." The warrant was issued pursuant to Cal.Code Civ.Proc. Sec. 1822.56, which provides in pertinent part that

[a] judge may expressly authorize a forcible entry where facts are shown sufficient to create a reasonable suspicion of a violation of a state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor, or zoning ... [and] where facts are shown establishing that reasonable attempts to serve a previous warrant have been unsuccessful. Where prior consent has been sought and refused, notice that a warrant has been issued must be given at least 24 hours before the warrant is executed.

        In compliance with the latter provision, Chinn wrote to Quade on October 10, 1990, advising him that an inspection had been scheduled for October 16, 1990, and that Chinn had obtained a forcible entry warrant.

        On October 16, Public Health officials returned to Quade's house to execute the forcible entry warrant, this time accompanied by Sgt. Heller of the San Francisco Police Department. Sgt. Heller, finding that Quade's door had been nailed shut, moved aside a piece of cardboard covering a window. Quade called from inside "I'm going to get my gun and use it." The sergeant then radioed for reinforcements. A tactical team arrived, as well as a team of hostage negotiators. Representatives of the various city agencies which had become involved in Quade's case were on the scene as well. The hostage negotiators by this time had learned that Quade was mentally unstable, elderly (they believed him to be 70), overweight, and "half-blind."

        The police cordoned off the area around Quade's house, and a member of the hostage negotiating team tried to talk to Quade. Quade did not respond. After nearly an hour, defendant Captain Willett formulated a plan to enter the house and take Quade into custody; he had been ordered to do the latter by Commander Lennon. Two officers on the tactical squad broke down the door with a battering ram; seven others entered the house. Five of the seven entered with guns drawn; two did not have their guns drawn, one because he was holding a shield. Quade appeared on top of the staircase holding a .22 caliber handgun. The police ordered him to drop the gun; rather than doing so, however, he said "I told you I was going to use it," and pulled the trigger. The officers shot back, and Quade died from gunshot wounds shortly thereafter. His own gun had apparently misfired, and none of the officers was hurt.

        After Quade had been taken to the hospital, the health inspectors came in. They found the house filled with garbage, rotting food, and excrement.

        Outside the house, Captain Hettrich, one of the defendants, gave the following statement to the press:

        It wasn't necessarily dangerous but we could have been waiting all day long. The man was just unresponsive to any of our demands, any of our requests. And with the hostage negotiators and myself it appeared that he was not going to respond

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and uh we felt that rather than keep traffic blocked up and the streets blocked all day long we would try to go in and arrest him.

B. Procedural Background

        This action was brought under 42 U.S.C. Sec. 1983 by Julia Alexander, executor of Quade's estate, against 16 members of the San Francisco Police Department and the City and County of San Francisco. 1 Plaintiff moved for summary judgment in her favor on her first theory of liability under Sec. 1983: unlawful entry to effect an arrest. Defendants filed a cross-motion for summary judgment on all claims. In an order dated September 3, 1992, the district court denied plaintiff's motion for summary judgment and granted defendants' motion on the unlawful entry issue, holding that no arrest had been made, that even if there had been a wrongful arrest, defendants were entitled to qualified immunity, and that even if they were not immune, they were entitled to summary judgment on the merits because they were in possession of a lawful administrative inspection warrant.

        In an order dated September 11, 1992, the district court granted summary...

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