547 F.3d 890 (8th Cir. 2008), 07-3110, Cross v. Mokwa

Docket Nº:07-3110.
Citation:547 F.3d 890
Party Name:Trinity CROSS; Molly Dupre; Arthur Friederichs; [1] Daniel Green; Mary Hastings; Joseph Locey; Kelly Meister; Alistair Neill Stewart; Celeste Verheist, Plaintiffs-Appellees, v. Joseph J. MOKWA, Police Chief, et al., Defendants-Appellants.
Case Date:November 14, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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547 F.3d 890 (8th Cir. 2008)

Trinity CROSS; Molly Dupre; Arthur Friederichs; 1 Daniel Green; Mary Hastings; Joseph Locey; Kelly Meister; Alistair Neill Stewart; Celeste Verheist, Plaintiffs-Appellees,

v.

Joseph J. MOKWA, Police Chief, et al., Defendants-Appellants.

No. 07-3110.

United States Court of Appeals, Eighth Circuit.

November 14, 2008

Submitted: May 12, 2008.

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[Copyrighted Material Omitted]

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Denise LeAnne Thomas, Asst. Atty. Gen., argued, St. Louis, MO, for appellant.

Gary R. Sarachan, St. Louis, MO (Sheila Greenbaum, on the brief), for appellee.

Before LOKEN, Chief Judge, BYE and COLLOTON, Circuit Judges.

LOKEN, Chief Judge.

The World Agricultural Forum (WAF) planned a conference in St. Louis in late May 2003. The St. Louis Police Department learned that prior WAF conferences

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in Boston, Washington, and other cities had attracted violent protests instigated by small anarchist groups that infiltrated peaceful protesters, and that Internet sites were exhorting out-of-town activists to travel to St. Louis to participate in a counter-conference called “ Biodevastation 7." The Federal Bureau of Investigation briefed the police on the history of these violent demonstrations, the tactics violent protesters used in the past, and the likelihood that potentially violent out-of-town protesters would stay illegally in unoccupied or condemned buildings. In response, the City adopted a “ Building Code Violation Enforcement Plan" to identify vacant and condemned buildings and to prevent their unlawful occupation.

On the morning of May 16, 2003, St. Louis Building Inspector John MacEnulty and several St. Louis police officers went to 3309 Illinois Avenue, a condemned building, and then to 3022 Cherokee Street, a building identified by MacEnulty as lacking an occupancy permit. At 3309 Illinois, MacEnulty and the police forcibly entered, arrested five persons for occupying a condemned building, and searched the premises. The five were jailed for twenty hours, entered Alford pleas to those charges, and were placed on probation. At 3022 Cherokee, the police seized and allegedly damaged personal property of owner Arthur Friederichs but did not issue citations. These actions, and other police actions not at issue on this appeal, prompted twenty-five protesters to sue the City and its Mayor, the Board of Police Commissioners, the Building and Zoning Commission, Inspector MacEnulty, the Police Chief, and several police officers. Plaintiffs asserted a variety of federal claims under 42 U.S.C. § 1983 and pendent state law claims. The Police Chief and six officers appeal interlocutory orders denying them qualified immunity from the First Amendment and Fourth Amendment damage claims of seven plaintiffs arising out of the entries, seizures, and arrests at 3309 Illinois and the alleged damage to Friederichs's personal property at 3022 Cherokee. Other claims remain pending in the district court, and still other claims have been dismissed.

Qualified immunity protects government officials performing discretionary functions “ insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 & n. 30, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Reviewing the denial of qualified immunity de novo, we reverse in part. See Moore ex rel. Moore v. Briggs, 381 F.3d 771, 772 (8th Cir.2004) (standard of review).

I. Claims Relating to the Events at 3309 Illinois

The house at 3309 Illinois was condemned as unsafe for occupancy in 1999. Owner Daniel Green appealed. The Board of Building Appeals granted Green sixty days to obtain permits and correct deficiencies, which he failed to do. In 2001, Green requested an additional hearing. The Board again delayed demolition to give him time to obtain construction drawings and permits. In August 2002, the City notified Green that the building remained condemned and that any occupants were subject to arrest.2 Before Inspector MacEnulty inspected 3309 Illinois on May 16, 2003, he reviewed computer records that listed the property as condemned and

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had a “ Condemned Building Order" prepared and on hand.

On the morning of May 16, plaintiffs Molly Dupre and Kelly Meister were living at 3309 Illinois with Green's permission, and Trinity Cross, Joseph Locey, and Celeste Verhelst were there as Green's overnight guests. Green, who had moved next door, was not present but was keeping personal items at the house. Inspector MacEnulty approached with several police officers and informed those inside that the building was illegally occupied and must be vacated. An occupant replied, with a vulgar epithet, “ We are not opening the door." The police forced open the door, removed and arrested the occupants, and searched the building, seizing a slingshot, a sign saying “ Kill Police," a bottle with a rag protruding, PVC pipes, a gasoline container, and two cans of flammable camper stove fuel.

A. Entry, Search, and Arrest Claims

The five occupants asserted Fourth Amendment claims of unlawful arrest. The five and Green asserted claims of unlawful entry, search, and seizure. Inspector MacEnulty and the police officers filed separate motions for summary judgment, arguing they are entitled to qualified immunity from these damage claims. Plaintiffs responded that they had a reasonable expectation of privacy in the premises, the warrantless entry and search violated their clearly established Fourth Amendment rights, and the arrests were unlawful. The district court dismissed all claims against Inspector MacEnulty, concluding that his “ enforcement of a standing condemnation order based on probable cause is not violative of the Fourth Amendment, even if scheduled to benefit an ongoing police investigation." Plaintiffs did not cross appeal this ruling; indeed, they did not include the summary judgment memoranda relating to MacEnulty in the record on appeal. As this ruling is critical to our analysis of the Fourth Amendment claims against the police officers, it is now law of the case.3

The district court granted the police officers qualified immunity from the claims of unlawful arrest because the officers had probable cause to believe that the five persons inside 3309 Illinois were illegally occupying a condemned building. Again, plaintiffs did not cross appeal that ruling, which was clearly correct.4 However, the court denied the officers qualified immunity on the Fourth Amendment claims of unlawful entry, search, and seizure of property at 3309 Illinois on the ground that, unlike Inspector MacEnulty, their primary purpose was to search for evidence of crime, and no exigent circumstances such as severe disrepair justified entry without a search warrant. We disagree for two independent reasons.

First, the district court ruled that the condemnation order gave Inspector MacEnulty authority to enter 3309 Illinois without a warrant, a ruling plaintiffs do not challenge on appeal. If MacEnulty may enter without a warrant, he may also be accompanied by police officers, even officers who are also pursuing a criminal

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investigation, like the customs inspector in United States v. Villamonte-Marquez, 462 U.S. 579, 584 n. 3, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983), citing Scott v. United States, 436 U.S. 128, 135-39, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). Plaintiffs argue that the “ extraordinary manner" of the officers' warrantless entry requires a “ balancing analysis" focused on the officers' intent to arrest protesters and seize their property. But the unlawful arrest claims were dismissed because there was probable cause to believe plaintiffs were illegally occupying the building. “ Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

Second, the district court took too narrow a view of the reasonableness, under the Fourth Amendment, of warrantless entries into condemned buildings. When a building has been condemned as unsafe for human occupation, it becomes, at least from the government's perspective, an abandoned structure. Public health and safety require that police officers, as well as building inspectors, have the right to access such structures at any time for a variety of reasons-to evict illegal occupants, to seek out and seize contraband and hazardous substances that may be illegally hidden there, to eliminate dangerous conditions that might injure adventurous trespassers such as children, and to prepare the premises for safe demolition. Though the parties failed to brief the issue, that this authority extends to police officers, as well as to code enforcement officials, is expressly confirmed by Section 119.6 of The Building Code of the City of St. Louis, adopted in 1999 by City Ordinance 64771:

Vacation of buildings; duties of police; penalty: Upon effecting condemnation of any building, structure or premises by the code official, it shall be unlawful for any person to enter or remain in or on such building, structure or premises.... It shall be the duty of the Police to remove any person from such building, structure or premises so condemned and to prevent any person from entering same until such time as the Police Department shall have been notified in writing by the code official that such building ... is in compliance with this code. (Emphasis added).5

Plaintiffs argued, and the district court agreed, that it is at least a jury question whether plaintiffs had reasonable expectations of privacy giving them standing to assert these Fourth Amendment claims because they were Green's invited residents and guests and had no...

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