770 F.3d 224 (2nd Cir. 2014), 12-4350-cv, Harris v. O'Hare

Docket Nº:12-4350-cv
Citation:770 F.3d 224
Opinion Judge:POOLER, Circuit Judge:
Party Name:GLEN HARRIS, individually, and PPA as guardian for K.H., a minor child, Plaintiffs-Appellants v. JOHNMICHAEL O'HARE; ANTHONY PIA; and CITY OF HARTFORD, Defendants-Appellees
Attorney:JON. L. SCHOENHORN, Jon L. Schoenhorn & Associates, Hartford, CT, for Plaintiffs-Appellants. THOMAS R. GERARDE, Howd & Ludorf, LLC, Hartford, CT (Alan R. Dembiczak, on the brief), for Defendants-Appellees JohnMichael O'Hare and Anthony Pia. NATHALIE FEOLA-GUERRIERI, Assistant Corporation Counsel,...
Judge Panel:Before: POOLER, PARKER, and WESLEY, Circuit Judges.
Case Date:October 30, 2014
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 224

770 F.3d 224 (2nd Cir. 2014)

GLEN HARRIS, individually, and PPA as guardian for K.H., a minor child, Plaintiffs-Appellants

v.

JOHNMICHAEL O'HARE; ANTHONY PIA; and CITY OF HARTFORD, Defendants-Appellees

No. 12-4350-cv

United States Court of Appeals, Second Circuit

October 30, 2014

Argued: December 11, 2013.

As Amended November 24, 2014.

Page 225

Appeal from a September 27, 2012 order and judgment, entered September 28, 2012, of the United States District Court for the District of Connecticut (Robert N. Chatigny, J.) denying Plaintiffs' motions for judgment as a matter of law and new trial, brought pursuant to Federal Rules of Civil Procedure 50 and 59 . We conclude that there was insufficient evidence to support the jury's finding of exigent circumstances, and thus that the district court erred in denying Plaintiffs' post-trial motions. We therefore reverse the judgment, and remand the matter to the district court for further proceedings consistent with this opinion.

JON. L. SCHOENHORN, Jon L. Schoenhorn & Associates, Hartford, CT, for Plaintiffs-Appellants.

THOMAS R. GERARDE, Howd & Ludorf, LLC, Hartford, CT (Alan R. Dembiczak, on the brief), for Defendants-Appellees JohnMichael O'Hare and Anthony Pia.

NATHALIE FEOLA-GUERRIERI, Assistant Corporation Counsel, Hartford, CT, for Defendant-Appellee City of Hartford.

Before: POOLER, PARKER, and WESLEY, Circuit Judges.

OPINION

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POOLER, Circuit Judge:

Glenn Harris and his daughter K.H. (together, " Plaintiffs" ) filed suit in 2008 against the City of Hartford and Hartford Police Officers JohnMichael O'Hare and Anthony Pia (together, " Defendants" ), for damages stemming from the officers' warrantless entry onto Harris's property on December 20, 2006. After entering the property, O'Hare shot and killed Seven, the family's pet Saint Bernard, at close range and within earshot, if not in front of, Harris's then-twelve-year-old daughter, K. During the entirety of the litigation leading up to trial, Defendants argued that there was no Fourth Amendment intrusion because the entry into the yard was not a Fourth Amendment search, that it was reasonable in any event, and that they were entitled to qualified immunity. The district court denied the parties' cross-motions for summary judgment in March 2010 and the parties submitted their Joint Trial Memoranda in January 2011. More than a year later, weeks before trial, Defendants filed an addition to their trial memorandum adding the affirmative defense of exigent circumstances as an exception to the Fourth Amendment's warrant requirement. Plaintiffs objected to this late-raised defense. The district court permitted it over objection, and the jury returned a verdict for Defendants.

For the reasons set out in this opinion, we hold that there was insufficient evidence to support a factual finding of exigent circumstances, and that this substantive error requires reversal of the judgment. We therefore reverse the judgment entered in favor of Defendants, and remand the matter for further proceedings consistent with this opinion.

BACKGROUND

During a six-day trial held in May 2012, the jury heard evidence concerning O'Hare and Pia's warrantless entry onto Plaintiffs' property following their receipt of a tip about guns being stashed in an abandoned Nissan Maxima. The officers entered the property at the same time that Harris's twelve-year-old daughter, K., had returned from school and was playing with her three-year-old Saint Bernard dog, Seven, in the backyard of the family's Hartford home. The following facts are taken from the testimony and other evidence presented at trial.

I. Relevant Factual Background

A. Plaintiffs' Home on Enfield Street

From 2006 to 2007, Plaintiffs lived in a single-family home at 297 Enfield Street. Their home was surrounded entirely by a chain link fence. In December 2006, Harris lived there with his daughter K., Tashonna Ayers, who was Harris's girlfriend

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and K.'s stepmother, and two pet Saint Bernards, Seven and Deuce.

The house had a front yard and backyard, which the family used for cookouts, playing with the dogs and hanging out together and with friends. During the summer, Plaintiffs would have pool parties and water fights with a blow-up pool they set up. There is a front gate which remains closed with a latch. The gate opens onto a walkway leading up to the front steps and front door. On the front of the house is a " Beware of Dog" sign.

Harris testified that during his ownership of the property, there were no utility meters that would require utility personnel to enter the property. Further, when water company personnel needed to enter the property to place a water meter in the north side yard, they obtained his permission before they entered onto his property.

K. testified that when she played with her dogs in the yard, they would run all around the fenced-in periphery of the house. When the dogs were playing with K. in the yard, she never needed to leash them. No one would ever come into the yard while K. was playing if they were not invited. At the relevant time in 2006, Harris had two cars, a dark SUV and a white pick-up truck that he drove to work each day.

B. The Officers' Gun Tip

On December 20, 2006, Officers O'Hare and Pia were on duty in the vicinity of Enfield Street. Both were part of the " Northeast Conditions Unit," which had its officers under orders to " get as many guns off the street as [they] could." Trial Tr. Vol. I at 140. Then-Officer Gabriel Laureano, who is not a party in this action, was also on duty that day, specifically a few streets over on Garden Street. While patrolling with O'Hare, Laureano saw George Hemingway, a high-ranking member of the West Hell Gang,1 whom Laureano knew to have been recently released on parole. Laureano noticed Hemingway drop " something" that " looked like little plastic sleeves" very discretely, which appeared to Laureano to be heroin or another type of drug. Id. at 64. This substance was later confirmed to be heroin. Id. Laureano and O'Hare placed Hemingway under arrest, handcuffed him, and put him in the back of the patrol car. Later that evening, Laureano filled out an application for an arrest warrant.

Hemingway, while alone in the car with Laureano and knowing " he was in a bind" because he had been arrested with drugs while out on parole, told Laureano that " he could get [them] some guns." Id. at 68. Laureano understood Hemingway to be hoping for some sort of " consideration" from a prosecutor in light of this arrest, and permitted Hemingway to make a call on his cell phone, during which time Laureano recalled Hemingway " was sweating and . . . was kind of frantic about figuring out where" the guns could be located. Id. at 147. Specifically, Hemingway informed Laureano that there were two small caliber guns stashed under the driver's seat of an abandoned grey Nissan Maxima in the rear yard of 297 Enfield Street. Hemingway did not tell Laureano how he knew about the guns.

Laureano had never used Hemingway as an informant before. Neither had O'Hare or Pia. Armed with Hemingway's tip, Laureano " informed Officers O'Hare and Pia to go check out the information." Id. at 76; see also Application for Arrest Warrant

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at 2. Officer Pia could not recall the route that he and O'Hare took to Enfield Street, but they headed over immediately, without a warrant and without informing their sergeant of what they were doing.

C. The Encounter at 297 Enfield Street

Proceeding without a warrant, Pia and O'Hare entered the front gate at 297 Enfield Street. The officers did not go up to the front door to knock and explain their presence, nor did they look to the front door, or notice the " Beware of Dog" sign. They did not look to see if a grey Nissan Maxima was parked in the driveway. They also did not drive on a parallel street to check if they could see anything in the backyard from the street. Once they entered the property, the officers did not see any abandoned vehicles. In fact, although it is undisputed that Harris's SUV was in the driveway at the time, O'Hare testified that he did not recall seeing any vehicles on the property.

As Pia and O'Hare began walking along the side of the house toward the rear yard, both of the officers had their service weapons out in a " tactical low ready approach," which O'Hare explained was a two-handed grip, Trial Tr. Vol. III at 620. Pia recalled seeing the dog towards the rear corner of the side yard, as he peeked into the back yard. Pia saw the dog take a few steps towards him. O'Hare yelled to Pia to run, and Pia turned around and ran until he exited the yard. O'Hare heard the dog growl, and believed that the dog was chasing him. Rather than run out the way he had entered, O'Hare ran back across the front lawn, turning to face the dog as he continued to back up. O'Hare then fired three shots at the dog at point-blank range. After shooting the dog, O'Hare saw K.

K. had returned from school and had taken Seven outside, which was a regular after-school chore. K. testified that after Seven urinated against the back fence, he ran around towards the front of the house. K. went around the opposite way, " [t]o cut him off." Id. at 425. By the time she got to the area where her father's SUV was parked, K. heard two gunshots. K. ran to the front yard and she saw a police officer, with his gun aimed at Seven, who was laying in the grass. K. screamed, and testified that the police officer shot Seven a third time in the head, in front of her.2 Her stepmother ran outside upon hearing gunshots, saw O'Hare holding a gun next to Seven, Pia standing in the driveway, and K. on her knees over Seven, who...

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