484 F.3d 1244 (10th Cir. 2007), 04-4240, Reeves v. Churchich

Docket Nº:04-4240.
Citation:484 F.3d 1244
Party Name:Alicia REEVES; Ashlee Reeves, Plaintiffs-Appellants, v. Alex CHURCHICH; Kevin Jones; David Wierman; C. Housley, Defendants-Appellees.
Case Date:April 24, 2007
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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484 F.3d 1244 (10th Cir. 2007)

Alicia REEVES; Ashlee Reeves, Plaintiffs-Appellants,

v.

Alex CHURCHICH; Kevin Jones; David Wierman; C. Housley, Defendants-Appellees.

No. 04-4240.

United States Court of Appeals, Tenth Circuit.

April 24, 2007

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Matthew H. Raty, Law Office of Matthew H. Raty, P.C., Salt Lake City, UT, for Plaintiffs-Appellants.

Nicolas M. D'Alesandro, Deputy District Attorney for Salt Lake County, UT (David E. Yocom, District Attorney for Salt Lake County, and T.J. Tsakalos, Deputy District Attorney, on the briefs), Salt Lake City, UT, for Defendant-Appellee Churchich.

J. Wesley Robinson, Senior City Attorney, Salt Lake City, UT, for Defendants-Appellees Jones, Wierman and Housley.

Before MURPHY, SEYMOUR and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

On June 21, 2000, Detective Alex Churchich of the Salt Lake County Sheriff's Office attempted, with the assistance of Officers Kevin Jones, David Wierman and Christie Housley of the Salt Lake City Police Department (The Officers), to apprehend a domestic violence suspect believed to be staying in an upstairs apartment of a duplex. In doing so, they allegedly pointed their weapons at Plaintiffs Alicia and Ashlee Reeves, who resided in the downstairs apartment of the duplex, and prevented them from leaving. The Reeves claim these actions violated their Fourth Amendment right to be free from unreasonable searches and seizures. Detective Churchich and The Officers moved for summary judgment based on qualified immunity. The district court granted their motions, concluding the Reeves had failed to demonstrate a violation of their constitutional rights. The Reeves appeal. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Background

In June 2000, Alicia Reeves and her daughter Ashlee (then fourteen years old) resided in the downstairs apartment of a duplex in Salt Lake City, Utah. Tim and Sharon Bell lived upstairs. The front of the duplex, which contained the duplex's only entry, faced west. The front entrance consisted of a screen door and a regular door, neither of which were capable of being locked. Immediately inside the front entrance was a small landing, with stairs leading up to the Bells' apartment and down to the Reeves' residence.

On the afternoon of June 21, 2000, Detective Alex Churchich of the Salt Lake County Sheriff's Office learned from a witness that Charles Diviney, who was suspected of assaulting his estranged wife, was staying with his sister, Sharon Bell. The witness also told Churchich that Diviney was leaving town and had access to firearms. Based on this information, Churchich decided to attempt to apprehend Diviney at the Bell residence.

Before proceeding to the Bell residence, Detective Churchich contacted the Salt Lake City Police Department for assistance (i.e., an agency assist). 1 The department

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dispatched Officers Kevin Jones, David Wierman, Cary Wichmann, Ron Bruno, Christie Housley and Alton Hedenstrom. These officers met Churchich in an abandoned lot near the Bell residence. 2 There, Churchich advised them of the situation and informed them that although he did not have a warrant for Diviney, he had probable cause to arrest him for assault. His intent was to perform a "knock and talk" at the Bell residence--approach the Bell residence and seek permission to search it for Diviney. Churchich also warned The Officers that Diviney was possibly armed.

After some discussion, Churchich and The Officers decided Jones, Bruno and Housley would attempt entry into the Bell residence while Churchich, Wierman, Wichmann and Hedenstrom performed containment duties outside the duplex. 3 Thereafter, Churchich and The Officers proceeded to the Bell residence, approaching it from the south. 4 Once at the residence, Churchich, armed with a rifle and handgun, stationed himself at the southwest corner of the duplex. Wierman, who was also armed with a rifle and handgun, and Wichmann, armed with a handgun, proceeded to the northeast corner of the duplex. Hedenstrom waited in the lot until the other officers arrived at the Bell residence. He then drove his patrol car to the residence and parked it behind a truck believed to belong to Diviney, to prevent it from leaving. Hedenstrom then proceeded to the northeast corner of the duplex to perform containment behind Officers Wierman and Wichmann. The remaining officers, Jones, Bruno and Housley, entered the duplex with their handguns drawn. 5

The Reeves were in their apartment. Alicia was on the living room couch starting to take a nap. Ashlee was taking a shower. When she finished, Ashlee went into her bedroom to get dressed. Through her opened but barred window, 6 she observed individuals she believed to be police officers walking with guns at their side. She then heard one of the individuals, allegedly Officer Wierman, say "Hold it right there." (R. Vol. II at 470.) She immediately grabbed her towel (she was still naked) and ran into the living room. 7 Ashlee woke Alicia, telling her there were people with guns in the backyard. Alicia, still half asleep and groggy, told Ashlee to go to Alicia's bedroom and get dressed while she determined what was going on.

While in her mother's bedroom, Ashlee observed a rifle barrel, alleged to be Detective Churchich's, through the open but barred window. The barrel was "moving

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around," following her movement. (R. Vol. II at 469.) Ashlee then heard someone say "Get down on the ground." (Id.) In response, Ashlee reached up, closed the blinds and ran out of the room to find her mother. 8

The dog was barking and would not go out the front door. Alicia decided to take her dog outside. When she reached the duplex's front entrance, she bent forward to pick up her dog. When she stood up, she met Officer Jones, who had just turned around, with his gun pointing at her head. 9 In shock, Alicia pushed the gun away and said "Don't point that gun at me. What's the problem? What's going on?" (R. Vol. I at 207.) She then heard Ashlee scream and ran downstairs to investigate.

Once downstairs, Alicia could see police officers circling her apartment. Scared, she told Ashlee to lie down behind the couch. Ashlee complied and Alicia went back upstairs. She again met Officer Jones and asked him to explain what the officers were doing. After receiving no answers, she went downstairs to her apartment to check on Ashlee.

While there, Alicia heard commotion upstairs. She went outside her door and saw officers pulling Sharon Bell out of the Bell residence. 10 Alicia asked what was going on. Officer Housley told her it was none of her business and to go back inside her apartment. Alicia responded, "It is my business. You are in my apartment. You are in my home. You are ... invading me. You need to tell me what's going on." (R. Vol. I at 209.) Housley replied, "Get back in your apartment, bitch[.]" 11 (Id.) Alicia responded, "I am not leaving. I want to know what's going on." (Id. at 211.)

Alicia then began yelling--asking The Officers whether they had a warrant, what was going on and would somebody please talk to her. By that time, Churchich had been called from his containment position to the Bell residence. While standing on the landing inside the duplex's main entrance, Churchich lifted his rifle (which had been pointing at the ground at his side) about three feet and told Alicia to get back in her apartment. Because Alicia was standing below him, when Churchich lifted his rifle, it was pointed at her. 12 She refused to go back inside her apartment and remained outside until Churchich, The Officers and Sharon Bell went inside the Bell residence. At that time, Alicia went to check on Ashlee.

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After checking on Ashlee, Alicia again left her apartment. At the landing, she was met by Officer Jones, who asked her questions for his report. After talking with him for a few minutes, she returned to her apartment.

Upon learning that Diviney was not at the Bell residence, Churchich and The Officers left the scene. Diviney was later apprehended by the Las Vegas Police Department.

On June 6, 2002, the Reeves filed a civil rights complaint against Churchich, Jones, Wierman, and Housley alleging violations of a Fourth Amendment right to be free from unlawful searches and seizures. 13 The Reeves also claimed Churchich, as The Officers' supervisor, was liable for their allegedly unconstitutional actions. 14 In March and May 2004, Churchich and The Officers filed motions for summary judgment asserting qualified immunity. On September 2, 2004, the district court granted both motions. Judgment was entered five days later. This timely appeal followed.

II. Discussion

The Reeves claim the district court erred in granting summary judgment on the qualified immunity and supervisor liability claims.

A. Qualified Immunity

We review a grant of summary judgment based on qualified immunity de novo, applying the same legal standard used by the district court. Lawmaster v. Ward, 125 F.3d 1341, 1346 (10th Cir.1997). Summary judgment should be granted "if the pleadings ... together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). In conducting our review, "[w]e view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Lawmaster, 125 F.3d at 1346.

"In an action under section 1983, individual defendants are entitled to qualified immunity unless it is demonstrated that their alleged conduct violated clearly...

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