Whittier v. Kobayashi, No. 08-12998.

• Decision Date: 31 August 2009
• Docket Number: No. 08-12998.
• Parties: Marlene WHITTIER, as Personal Representative of the Estate of Anthony Diotaiuto deceased and individually, Andrew Diotaiuto, Plaintiffs-Appellees, v. Daniel KOBAYASHI, individually, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

581 F.3d 1304

Marlene WHITTIER, as Personal Representative of the Estate of Anthony Diotaiuto deceased and individually, Andrew Diotaiuto, Plaintiffs-Appellees, v. Daniel KOBAYASHI, individually, Defendant-Appellant.

No. 08-12998.

United States Court of Appeals, Eleventh Circuit.

August 31, 2009.

Scott D. Alexander, Johnson Anselmo Murdoch Burke Piper & McDuff, Ft. Lauderdale, FL, for Defendant-Appellant.

Terrence P. Collingsworth, Conrad & Scherer, Washington, DC, Janine Kalagher McGuire, Conrad & Scherer, Ft. Lauderdale, FL, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON, BLACK and SILER,^* Circuit Judges.

PER CURIAM:

Daniel Kobayashi, an officer with the City of Sunrise, Florida, Police Department, appeals the district court's order denying in part his motion for summary judgment. Kobayashi was a member of a Special Weapons and Tactics (SWAT) team that conducted a raid on Plaintiff-Appellee Marlene Whittier's home, which she shared with her son, Anthony Diotaiuto. During the raid, Diotaiuto was shot and killed. Whittier brought a 42 U.S.C. § 1983 action, both individually and as personal representative for Diotaiuto's estate, against several members of the SWAT team alleging, inter alia, Kobayashi violated her son's Fourth Amendment rights when he entered her home without first knocking and announcing the SWAT team's presence. After extensive discovery, Kobayashi moved for summary judgment, arguing he was entitled to qualified immunity and no genuine issue of material fact existed as to whether a knock and announce occurred. The district court denied his motion as to Whittier's knock-and-announce claim. Because Kobayashi is entitled to qualified immunity, we now reverse.

I. FACTS

In July 2005, one of Anthony Diotaiuto's neighbors informed the City of Sunrise Police Department (Sunrise police) that Diotaiuto was selling large quantities of cannabis and cocaine from his residence. Based upon this information, law enforcement began an investigation of Diotaiuto's drug activity, which included surveillance of the Whittier/Diotaiuto residence and a "controlled buy" of marijuana by a confidential informant. In addition to evidence that Diotaiuto was selling illegal narcotics in his home, the investigation also revealed Diotaiuto carried a handgun on his person at all times and kept a loaded shotgun in his bedroom closet.

On August 3, 2005, a state circuit judge signed a warrant for the Sunrise police to search the Whittier/Diotaiuto home. Based upon Diotaiuto's drug activity and possession of firearms, the Sunrise police classified the warrant as "high risk," which the Sunrise police define as "involving acts of violence or potential acts of violence." The Sunrise police use a SWAT team in the service of all "high risk" warrants, and thus a SWAT team was assembled to serve the warrant on the Whittier/Diotaiuto residence.

In preparation for the service of the warrant, the Sunrise police made a SWAT operational plan. This plan indicated Diotaiuto sold illegal narcotics from his home, had a criminal history, and possessed two firearms—a semi-automatic handgun carried on his person and a shotgun kept in his bedroom closet. The plan also called for an eight-man SWAT team to execute the warrant; Kobayashi was designated as the team leader and was responsible for knocking and announcing the presence of the SWAT team prior to entry. The members of the SWAT team received and reviewed the information in the operational plan during a briefing that was held in the early morning hours of August 5, 2005.

Following the briefing, at just after 6:00 a.m. on that same day, the SWAT team arrived at the Whittier/Diotaiuto residence to execute the warrant. According to the testimony of the officers, Kobayashi approached the door, knocked loudly several times, and announced the presence of the Sunrise police and the search warrant. Fourteen police officers present at the scene testified they heard a knock and announce. Only a single officer did not hear a knock and announce. Despite the fact that nearly every officer present heard a loud and forceful knock and announce, not a single neighbor heard a knock or an announcement of the police presence. At least three neighbors testified they were listening and would have been able to hear such an announcement if it had occurred.

Next, Kobayashi signaled for the breach team to open the front door. After the door was pried open, the SWAT team entered the home and encountered Diotaiuto, whom Kobayashi instructed to "get on the ground." Diotaiuto did not comply with the order and instead ran to his bedroom. Two SWAT team officers followed in pursuant, kicked open the bedroom door, and followed Diotaiuto inside. According to the testimony of the officers, Diotaiuto entered his closet, racked a gun, and pointed it at the officers. Both officers were yelling at Diotaiuto to put the gun down. They then opened fire, and Diotaiuto fell back into the closet. From a seated position in the closet, Diotaiuto began to raise his gun again. Both officers yelled at Diotaiuto to drop the gun; their commands, however, were disregarded. The officers fired again, and Diotaiuto was killed.

II. STANDARD OF REVIEW

This Court reviews "de novo a district court's disposition of a summary judgment motion based on qualified immunity, applying the same legal standards as the district court." Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir.2003). We resolve all issues of material fact in favor of the plaintiff, and then, under that version of the facts, determine the legal question of whether the defendant is entitled to qualified immunity. Id.

III. DISCUSSION

"Qualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates `clearly established statutory or constitutional rights of which a reasonable person would have known.'" Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir.2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666 (2002)). "[T]o receive qualified immunity, an official must first establish that `he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.'" McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir.2009) (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002)).

"If the official was acting within the scope of his discretionary authority ... the burden shifts to the plaintiff to show that the official is not entitled to qualified immunity." Skop v. City of Atlanta, 485 F.3d 1130, 1136-37 (11th Cir.2007). "To overcome qualified immunity, the plaintiff must satisfy a two prong test; he must show that: (1) the defendant violated a constitutional right, and (2) this right was clearly established at the time of the alleged violation." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir.2004). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001).

Whittier asserts Kobayashi entered her and her son's residence without first knocking and announcing the SWAT team's presence in violation of the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. In Wilson v. Arkansas, 514 U.S. 927, 929, 115 S.Ct. 1914, 1915, 131 L.Ed.2d 976 (1995), the Supreme Court held the Fourth Amendment reasonableness inquiry incorporated the common law requirement that officers, when executing a search warrant, must knock on a door and announce their identity before attempting a forcible entry into a home. The Court, however, recognized "[t]he Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests," id. at 934, 115 S.Ct. at 1918, and noted the knock-and-announce requirement could give way "under circumstances presenting a threat of physical violence," or "where police officers have reason to believe that evidence would likely be destroyed if advance notice were given," id. at 936, 115 S.Ct. at 1919.

Following Wilson, some courts created a blanket exception to the knock-and-announce requirement in felony drug cases, based in part on the generalization that these cases often involve a threat of violence and destruction of drugs. See Richards v. Wisconsin, 520 U.S. 385, 392, 117 S.Ct. 1416, 1420, 137 L.Ed.2d 615 (1997). In Richards v. Wisconsin, however, the Supreme Court rejected such a categorical exception and instead adopted a case-by-case approach for determining if law enforcement acted reasonably in entering a residence without first knocking and announcing: "In order to justify a `no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Id. at 394, 117 S.Ct. at 1421. The Court acknowledged, however, "[t]his showing is not high." Id., 117 S.Ct. at 1422.

Both Wilson and Richards were criminal cases in which the defendants had moved to suppress evidence based upon alleged Fourth Amendment violations. In the context of qualified immunity, this Court has stated "the issue is not whether reasonable suspicion existed in fact, but whether the officer had `arguable' reasonable suspicion." Jackson v. Sauls, 206 F.3d 1156, 1166 (11th...