616 F.3d 1108 (10th Cir. 2010), 08-2254, Lundstrom v. Romero

Docket Nº:08-2254.
Citation:616 F.3d 1108
Opinion Judge:TYMKOVICH, Circuit Judge.
Party Name:Joseph LUNDSTROM; Jane Hibner, Plaintiffs-Appellants, v. Albuquerque Police Officers Debra ROMERO, Anthony Sedler, Lorenzo Apodaca, Edouard Taylor, Zazza Green, in their individual capacities and as employees of the City of Albuquerque, Defendants-Appellees.
Attorney:Frances Crockett, Law Office of Frances Crockett, Albuquerque, NM, for Appellants. Stephanie M. Griffin, Assistant City Attorney, City of Albuquerque, NM, for Appellees Sedler, Apodaca, Taylor and Green (with Michael S. Jahner, Yenson, Lynn, Allen & Wosick, P.C., Albuquerque, NM, on the Joint Bri...
Judge Panel:Before KELLY, EBEL, and TYMKOVICH, Circuit Judges.
Case Date:August 17, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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616 F.3d 1108 (10th Cir. 2010)

Joseph LUNDSTROM; Jane Hibner, Plaintiffs-Appellants,

v.

Albuquerque Police Officers Debra ROMERO, Anthony Sedler, Lorenzo Apodaca, Edouard Taylor, Zazza Green, in their individual capacities and as employees of the City of Albuquerque, Defendants-Appellees.

No. 08-2254.

United States Court of Appeals, Tenth Circuit.

August 17, 2010

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Frances Crockett, Law Office of Frances Crockett, Albuquerque, NM, for Appellants.

Stephanie M. Griffin, Assistant City Attorney, City of Albuquerque, NM, for Appellees Sedler, Apodaca, Taylor and Green (with Michael S. Jahner, Yenson, Lynn, Allen & Wosick, P.C., Albuquerque, NM, on the Joint Brief, for Appellee Romero) for Appellees.

Before KELLY, EBEL, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

This case arises from a confrontation at Joseph Lundstrom's home during a child welfare check by Albuquerque Police Department officers. The encounter resulted in the officers pulling weapons on Lundstrom and his girlfriend, Jane Hibner, ordering him from the home, and then leaving them handcuffed on the front sidewalk while officers searched the home. No child was found in the home.

Lundstrom and Hibner brought this suit under 42 U.S.C. § 1983 as a result of the encounter. The district court determined qualified immunity shielded the officers and granted their summary judgment motions.

On appeal, Lundstrom and Hibner argue qualified immunity does not protect the officers. We conclude Lundstrom and Hibner have alleged facts sufficient to demonstrate the officers violated their clearly established constitutional rights. We find that, while the circumstances the officers confronted initially supported a brief investigatory detention, objectively reasonable officers would not have prolonged the detention and searched the home on the facts before them. Accordingly, we hold the officers are not entitled to qualified immunity.

We therefore AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.

I. Background

On the evening of August 19, 2006, a neighbor called 911 and reported she heard a woman at Lundstrom's residence " like beating [her] toddler, and [she's] got him outside in the rain and she's screaming at him that he can come in the house when he shuts the f* * * up." App. at 47. The neighbor told the 911 operator she actually did not see anything but stated she could " hear the sound of [the woman's] hand striking [the child]" and his " screaming." Id. at 48. The neighbor informed the operator she had driven by Lundstrom's house in her " tall truck" in an attempt to observe the situation, but that she could not see into the backyard. Id. Based on the child's " high pitched baby scream," the neighbor estimated for the operator that the child was a " toddler or younger." Id. at 49. She left her telephone number with the operator.

Approximately 40 minutes later, around 9:30 p.m., Officer Debra Romero of the Albuquerque Police Department (APD), responding to the neighbor's call, arrived at Lundstrom's house. Officer Romero understood from dispatch that someone had reported hearing a child being slapped

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and crying outside, and there was a concern for the child's welfare. As Officer Romero approached the front door of Lundstrom's residence, she heard a high-pitched voice, but could not tell whether it was the voice of a child or an adult.

Officer Romero rang the door bell and Lundstrom answered the door. Lundstrom testified Officer Romero was in the foliage in the front yard when he came to the door and that she shined her flashlight on him and inside his house. Officer Romero, who was in full uniform, identified herself as an APD officer and explained to Lundstrom that she was there to check on a child's welfare. According to Officer Romero, Lundstrom became hostile as soon as she told him why she was at his house. Lundstrom stated there was no child at his residence. Officer Romero replied she needed to enter Lundstrom's house to verify no child was in need of assistance. Officer Romero testified Lundstrom shouted " there [are] no f* * *ing kids here" and slammed the front door shut. Id. at 70. Lundstrom testified he neither yelled at Officer Romero nor closed the front door at this time.

Lundstrom testified he was suspicious Officer Romero was not an actual police officer and that her uniform and badge were fake. Lundstrom requested Officer Romero provide identification. She responded by pointing to her badge and reiterating that she was an APD officer. Lundstrom further testified Officer Romero also pulled her gun, pointed it at him, and demanded he show his hands after he requested identification from her. Officer Romero testified-differently-that she drew her weapon when Lundstrom reopened the front door because she was concerned he might be armed. At this point, Hibner, responding to Lundstrom's raised voice, went to the front door. She moved between Officer Romero and Lundstrom; Officer Romero's gun was pointed at her for a short time. When Lundstrom showed his hands to Officer Romero, she determined he was holding a telephone, not a weapon, and lowered her gun. Hibner then left the residence while Lundstrom shut the front door and remained inside.

Officer Romero requested back-up units be sent to Lundstrom's house. Three officers responded to her request. When they arrived at the scene, they understood a disorderly subject had " barricaded" himself inside the house and that Officer Romero had originally been sent to Lundstrom's residence to check on a child's welfare. Id. at 81.

When the three officers arrived at Lundstrom's house, another officer, who had been dispatched there in response to a request by Lundstrom for a second officer, was already present. Lundstrom had called 911, asking for confirmation that Officer Romero was in fact a police officer and that additional officers be sent to his house.

Four officers positioned themselves in front of Lundstrom's residence. A fifth officer took a position in Lundstrom's backyard, either climbing the fence or opening a gate to gain access.

The 911 operator confirmed for Lundstrom that Officer Romero was an APD officer. For a time, Lundstrom remained unconvinced. During that time, the officers tried to persuade him to exit the house.

While this was happening, Hibner, who remained in front of Lundstrom's house, used the cordless telephone she was carrying to participate in Lundstrom's call with 911. Hibner testified that, at this point, Officer Romero did not ask her any questions and did not respond to her attempts to initiate a conversation. The officers positioned in front of the house eventually

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directed Hibner to come to them. When Hibner complied, she was handcuffed, patted down, and directed to sit on the curb. According to Hibner, she was asked a number of questions but none relating to a child, until she mentioned her granddaughter. Hibner testified, " It seem[ed] like they weren't really interested in a ... child." Id. at 358.

At some point after Hibner left the residence and Lundstrom closed the front door, one of the officers called dispatch, requesting that the information the neighbor reported be verified. Dispatch called the neighbor on the telephone. The neighbor told the dispatcher that, while she never saw anything, she heard an adult female-" definitely a female" -yelling at and striking a small child, " an infant or a toddler." Plaintiffs/Appellants Production to the Record as Requested by this Court, dated Sept. 24, 2009, Exhibit 1, at 50-51. The dispatcher and the neighbor engaged in the following dialogue:

DISPATCH: Okay. There is no child there at [Lundstrom's residence]. It's two adults. It's a male and a female. So I need to know what you heard....

NEIGHBOR: Well, then it's the wrong address, because this was an infant and a female adult. But they only have that baby some of the time.

DISPATCH: So, you're saying there was a small child there?

NEIGHBOR: Yes.

Id. at 50. The neighbor also stated she was a retired San Diego police officer.

Dispatch advised the officers the neighbor was a retired San Diego police officer and that, while she did not see anything, she had " heard a female adult yelling at a small [child]." App. at 51. Beyond that, it is unclear how much of the dispatcher's conversation with the neighbor was heard by or relayed to the officers. Officer Romero testified she was never informed there was a possibility she was at the wrong residence and that, " [at] the time of the call, [based on the information given to her, she] was sure [she] was at the right residence." Id. at 73. But another of the officers testified " there was a dialogue on the telephone between 911 operators, our dispatcher, and the officers at the front door" and that " any time a dispatcher would get any information pertinent to [the situation], they would relay it over the radio to us." Id. at 83. In addition, Officer Romero acknowledged all of the officers had access to the same line of communication and could listen to the same radio.

From a position in the backyard, one officer observed Lundstrom pacing in a bedroom. He testified Lundstrom appeared upset, and reported his observations via radio to the other officers at the scene.

The 911 operator speaking with Lundstrom on the telephone ultimately transferred his call to dispatch. The dispatcher again confirmed for Lundstrom that the officers were actual APD officers: " I have four or five officers outside your home." Id. at 65. The dispatcher also directed Lundstrom to exit his house and go to the officers,...

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