700 F.3d 845 (6th Cir. 2012), 10-6462, Andrews v. Hickman County, Tennessee

Docket Nº:10-6462, 10-6464.
Citation:700 F.3d 845
Opinion Judge:JULIA SMITH GIBBONS, Circuit Judge.
Party Name:Robert Dale ANDREWS and Patti Andrews, Plaintiffs-Appellees (10-6462 & 10-6464), v. HICKMAN COUNTY, TENNESSEE, et al., Defendants, Kelly Davis; Monica Wright; Cynthia Primm, individually in and in their official capacities, Defendants-Appellants (10-6462), Paul Wade, individually and in his official capacity, Defendant-Appellant (10-6464).
Attorney:Lindsey O. Appiah, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellants in 10-6462. T. William A. Caldwell, Ortale, Kelley, Herbert & Crawford, Nashville, Tennessee, for Appellant in 10-6464. Connie Reguli, Lawcare Family Law Center, P.C., Brentwood, Tennessee, for Appel...
Judge Panel:Before GIBBONS AND SUTTON, Circuit Judges; and ADAMS, District Judge. GIBBONS, J., delivered the opinion of the court, in which ADAMS, D. J., joined, and SUTTON, J., joined in all parts including the judgment, with the exception of Part IV. SUTTON, J. (pp. 864-65), delivered a separate opinion co...
Case Date:December 03, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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700 F.3d 845 (6th Cir. 2012)

Robert Dale ANDREWS and Patti Andrews, Plaintiffs-Appellees (10-6462 & 10-6464),

v.

HICKMAN COUNTY, TENNESSEE, et al., Defendants,

Kelly Davis; Monica Wright; Cynthia Primm, individually in and in their official capacities, Defendants-Appellants (10-6462),

Paul Wade, individually and in his official capacity, Defendant-Appellant (10-6464).

Nos. 10-6462, 10-6464.

United States Court of Appeals, Sixth Circuit.

December 3, 2012

Argued: Oct. 4, 2011.

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ARGUED:

Lindsey O. Appiah, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellants in 10-6462.

T. William A. Caldwell, Ortale, Kelley, Herbert & Crawford, Nashville, Tennessee, for Appellant in 10-6464.

Connie Reguli, Lawcare Family Law Center, P.C., Brentwood, Tennessee, for Appellees in 10-6462 and 10-6464.

ON BRIEF:

Lindsey O. Appiah, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellants in 10-6462.

T. William A. Caldwell, W. Carl Spinning, Ortale, Kelley, Herbert & Crawford, Nashville, Tennessee, for Appellant in 10-6464.

Connie Reguli, Lawcare Family Law Center, P.C., Brentwood, Tennessee, for Appellees in 10-6462 and 10-6464.

Before GIBBONS AND SUTTON, Circuit Judges; and ADAMS, District Judge. [*]

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GIBBONS, J., delivered the opinion of the court, in which ADAMS, D. J., joined, and SUTTON, J., joined in all parts including the judgment, with the exception of Part IV. SUTTON, J. (pp. 864-65), delivered a separate opinion concurring in part and in the judgment.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Defendants Kelly Davis, Cynthia Primm, Monica Wright, and Paul Wade appeal the district court's decision denying in part their motions for summary judgment. The district court found that the defendants were not entitled to qualified immunity from plaintiffs Dale and Patricia Andrews' Fourth Amendment claim. For the following reasons, we AFFIRM the district court's decision regarding defendant Paul Wade and REVERSE the decision with respect to Davis, Primm, and Wright.

I.

A.

Around August 12, 2008, Defendant Kelly Davis, an assessment worker for the Tennessee Department of Children's Services (" DCS" ) who serves Hickman County, Tennessee, received a referral regarding allegations of abuse that had been lodged against plaintiffs Dale and Patricia Andrews. The referral was classified a " Priority Two" or " P2" referral. A P2 referral indicates that there is still a risk of harm to the child, but the child is " safe for the time being" and a DCS employee should make contact with the child within forty-eight hours. Davis, however, was not able to make contact within the recommended time period because the address provided in the initial referral was incorrect. Davis continued to contact the referent in an effort to find the correct address, until the referent told her the correct address on August 27. On that same day, Davis was contacted in her office by a new referent 1 regarding conditions at the Andrews' home, and she instructed the referent to call the central DCS hotline in order to file an official referral. This second referral was received at 11:38 p.m. and classified as a priority three referral, which indicates that a DCS employee should make contact within three business days.

Finally in possession of a valid address, Davis conferred with her supervisor who told Davis to visit the home that day. Due to references to the presence of guns in the home in the follow-up conversations with the original referent, and because the site visit was to be carried out " late at night," Davis requested law enforcement to assist her in making the visit. The Hickman County Sheriff's Department dispatched Deputy Kyle Chessor and defendant Paul Wade, who was at the time a reserve officer, to assist with the site visit. According to Wade, the Hickman County officers receive DCS requests for assistance unaccompanied by any further information regarding the level of urgency or a threat code.

Accompanied by two DCS coworkers, Cynthia Primm and Monica Wright, Davis drove to a parking lot closer to the plaintiffs' home in order to meet the Hickman County officers. The uniformed officers arrived in a marked car, and the DCS employees told the officers " what was going on" and " where [they] were going." Wade asserted that because he was seated

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in the passenger seat of Officer Chessor's car he did not " get a whole lot of what was going on." Davis, Primm, and Wright (" State Defendants" ) followed the officers to the Andrews's home in a separate vehicle.

At the time of the events in question on August 27, 2008, the Andrews resided in Hickman County with four of their daughters. At approximately 8:30 p.m., the officers and State Defendants arrived at the Andrews's home with the marked sheriff's department vehicle leading the way up the drive.

Dale Andrews was outside working on a trailer when the defendants arrived. The officers, who were armed, and the State Defendants approached Mr. Andrews. According to the Andrews, the officers introduced themselves and informed Mr. Andrews that the DCS employees wanted to speak with him and interview the children. The officers " got a little hostile" with Mr. Andrews when he asked them to show identification proving they were officers. Mr. Andrews claims that one of the officers told him that he was not allowed to go back into his house unaccompanied by an officer.2 Because his family had previously experienced an encounter with an individual who was disguised as a police officer, Mr. Andrews explained that he wanted to go inside to get his wife to call a contact in the sheriff's office in order to confirm that the officers were legitimately dispatched to the home. Given the late hour of the visit, Mr. Andrews also wanted the officers to remain outside because he was not certain if his daughters were inside bathing. Andrews accordingly asked the officers to wait outside.

While the officers were speaking with Mr. Andrews outside, Mrs. Andrews was alerted to the presence of the officers by one of her daughters. Mrs. Andrews then called a sergeant in the sheriff's office to confirm that the officers were lawfully dispatched. The sergeant informed her that he needed to speak with one of the officers to confirm the legitimacy of the visit. Mrs. Andrews headed towards the back door of the house to hand the phone off to one of the officers. At the same time, Mr. Andrews was entering the house via the back door to ask his wife to call the sergeant. He encountered his wife coming around the corner from the kitchen into the small laundry room into which the back door opens. The Andrews claim that Mr. Andrews was immediately followed into the house by an officer, closely followed by the three DCS employees, and then another officer, creating a " whoosh of presence" and " flooding" into the home. Finding the officers in front of her, Mrs. Andrews handed the phone to one of the officers in order to allow the sergeant to confirm the legitimacy of the dispatch to the residence. The officer spoke with the sergeant and returned the phone to Mrs. Andrews. The sergeant confirmed that the officers had been sent to accompany the DCS employees.

Wade's account of the entrance into the home differs from that of the Andrews. Wade claims that he remained outside the home while Mr. Andrews went inside through the back door, that both Mr. and Mrs. Andrews then came outside, and that the entire party walked around to the front of the house. The party then entered

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the house through the front door, with the exception of Wade who remained on the front porch except when he stepped inside and " watched what was going on for a few minutes" before stepping back outside.

Once inside the home, the State Defendants took control, and the officers did not give any further orders. The State Defendants requested the opportunity to interview the children individually. The Andrews claim that they granted permission for the interviews because of the presence of the officers and because they feared arrest or losing their children if they were to deny the request. Mrs. Andrews then led the State Defendants to separate rooms where they could interview each child. The Andrews then stepped outside where they were joined by the officers; they recall that one officer stayed with Mrs. Andrews on the porch while the other officer went with Mr. Andrews to the back of the house.

At the conclusion of the interviews, the State Defendants informed the Andrews that they needed to conduct a walk-through of the home as part of their assessment. At this point, the officers indicated that they needed to leave for a shift change. The State Defendants informed the officers that they were comfortable remaining at the house unaccompanied, and the officers left. The parties acknowledge that the Andrews did not ask the officers to leave the property and did not object to their presence beyond Mr. Andrews's request that the officers stay outside while he went inside to get his wife. The Andrews then acquiesced to the walk-through, allowing the State Defendants to go upstairs and showing them where the food was kept in the kitchen. Finally, the State Defendants asked to see any weapons in the home, and the Andrews showed them where guns and ammunition were kept locked up in separate locations in the house. Following the walk-through, the State Defendants left the home. No official charges were filed against the Andrews as a result of the referral, and the assessment was closed as " no services indicated." It is...

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