468 F.3d 1141 (9th Cir. 2006), 05-35302, Frunz v. City of Tacoma

Docket Nº:05-35302.
Citation:468 F.3d 1141
Party Name:Susan FRUNZ, Plaintiff-Appellee, v. CITY OF TACOMA, a municipal corporation; Tacoma Police Department; Alan Morris, TPD Officer, in his individual capacity; Gary T. Stril, TPD Sergeant; David Alred, TPD Officer, in his individual capacity, Defendants-Appellants.
Case Date:November 13, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1141

468 F.3d 1141 (9th Cir. 2006)

Susan FRUNZ, Plaintiff-Appellee,


CITY OF TACOMA, a municipal corporation; Tacoma Police Department; Alan Morris, TPD Officer, in his individual capacity; Gary T. Stril, TPD Sergeant; David Alred, TPD Officer, in his individual capacity, Defendants-Appellants.

No. 05-35302.

United States Court of Appeals, Ninth Circuit.

November 13, 2006

Argued and Submitted October 25, 2006 Seattle, Washington

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Jean P. Homan, Assistant City Attorney, Tacoma City Attorney's Office, Tacoma, Washington, for defendants-appellants.

Hugh J. McGavick, Law Offices of Hugh J. McGavick, Olympia, Washington, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding. D.C. No. CV-03-05709-RBL.

Before: KOZINSKI and FERNANDEZ, Circuit Judges, and CARNEY,[*] District Judge.

KOZINSKI, Circuit Judge:

The facts are remarkable. Plaintiff, Susan Frunz, and her two guests were in Frunz's home in Tacoma, Washington, when police surrounded the house, broke down the back door and entered. The police had no warrant and had not announced their presence. Frunz first became aware of them when an officer accosted her in the kitchen and pointed his gun, bringing the barrel within two inches of her forehead. The police ordered or slammed the occupants to the floor and cuffed their hands behind their backs—Frunz for about an hour, until she proved to their satisfaction that she owned the house, at which time they said "never mind" and left.

As the officers doubtless knew, physical entry into the home is the "chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); see also Murdock v. Stout, 54 F.3d 1437, 1440 (9th Cir. 1995) ("[P]rotection of individuals from unreasonable government intrusion into their houses remains at the very core of the Fourth Amendment."). To safeguard the home,

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we normally require a warrant before the police may enter. "The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals .... And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home." McDonald v. United States, 335 U.S. 451, 455-56, 69 S.Ct. 191, 93 L.Ed. 153 (1948); see also Groh v. Ramirez, 540 U.S. 551, 560, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). What extraordinary circumstances justified sundering the privacy and protection of Frunz's home without a warrant?

Earlier that afternoon, one Clinton Staples called 911 and reported that his neighbor, who was out of town, had asked Staples to keep an eye on his house. Staples had observed "Susan," the neighbor's ex-wife, arrive in a gray Toyota with Washington license plate 928 EKR; she was in the house and the car was parked out front. Officers David W. Alred and Alan R. Morris arrived a few minutes later and checked the house for signs of break-in. They then knocked at the front door and got no answer. Before leaving, the police told Staples to call back if he saw further evidence that the house was occupied.

About half an hour later, Staples again called 911 to report that Susan was "now inside the house" and had just answered the door to a visitor. Staples also mentioned that Frunz was subject to a restraining order which prohibited her from being at that location. In fact, Frunz had been ceded the house during the divorce proceedings. And, while she was restrained from going to her ex-husband's residence, her ex had moved to California. Frunz had been living in the house for the better part of a week.

Alred and Morris, joined by other officers (including Sargent Gary T. Stril) arrived at the scene forty minutes later. They surrounded the house and, without further investigation or observation, entered and subdued the occupants as described above. The two guests were able to prove their identity and were found to have no outstanding warrants. They were uncuffed and ordered to leave. The officers left Frunz in handcuffs because she was unable to direct them to her picture ID or to paperwork showing that she owned the house. Frunz testified that she was unable to do so because she was "terrified," and because Officer Morris kept threatening her and telling her to "shut up."1

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She was released only after the officers were able to reach her divorce lawyer, who confirmed that Frunz owned the house.

Frunz sued Alred, Morris and Stril under 42 U.S.C. § 1983, claiming constitutional violations for unlawful entry and search of her home, and for use of excessive force by Alred.2 The jury found against all defendants on all counts, and awarded $27,000 in compensatory damages and $111,000 in punitive damages.

The officers appeal, claiming the verdict is not supported by the evidence and that they are, in any event, entitled to qualified immunity. The nub of their argument is that their warrantless entry was justified—or that they could reasonably have thought it justified—by a burglary in progress. And, having determined that...

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