797 F.2d 812 (9th Cir. 1986), 85-3993, White by White v. Pierce County

Docket Nº:85-3993, 85-4018.
Citation:797 F.2d 812
Party Name:Jimmy R. WHITE and Chris R. White and Shannon White, Minors, By and Through their guardian, Jimmy R. WHITE, Plaintiffs-Appellees, v. PIERCE COUNTY and Raymond Fjetland, the Pierce County Sheriff; Rod Weast, Ron Buhl, and Dave Delton, as Deputy Pierce County Sheriffs; and Rod Weast and
Case Date:August 20, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 812

797 F.2d 812 (9th Cir. 1986)

Jimmy R. WHITE and Chris R. White and Shannon White, Minors,

By and Through their guardian, Jimmy R. WHITE,

Plaintiffs-Appellees,

v.

PIERCE COUNTY and Raymond Fjetland, the Pierce County

Sheriff; Rod Weast, Ron Buhl, and Dave Delton, as Deputy

Pierce County Sheriffs; and Rod Weast and "Jane Doe" Weast,

individually and the marital community of them composed;

Ron Buhl and "Jane Doe" Buhl, individually and the marital

community of them composed; and Dave Delton and "Jane Doe"

Delton, individually and the marital community of them

composed, Defendants-Appellants.

Nos. 85-3993, 85-4018.

United States Court of Appeals, Ninth Circuit

August 20, 1986

Argued and Submitted June 4, 1986.

Page 813

Sverre O. Staurset, Graves, Staurset & Mauritz, Tacoma, Wash., for plaintiffs-appellees.

Daniel R. Hamilton, Deputy Pros. Atty., Tacoma, Wash., for defendants-appellants.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, SNEED and SCHROEDER, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge.

In this case we are asked to decide whether deputy sheriffs investigating a report of child abuse have qualified immunity from suit for warrantless entry.

The Whites brought this action under 42 U.S.C. Sec. 1983, contending that their Fourth Amendment rights against unreasonable searches and seizures were violated. The deputies appeal the denial of their motion for summary judgment, relying on the qualified immunity rule of Mitchell v. Forsyth, --- U.S. ----. 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We reverse.

FACTS

On the evening of September 22, 1982, Deputy Sheriffs Weast, Delton and Buhl were dispatched to investigate a report from Washington State Child Protective Services (CPS) that a seven-year-old child had been seen playing in the White's yard without his shirt on and with severe welts on his back. It is undisputed that the officers had a duty to investigate such reports under RCW 26.44.050. 1

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Upon arrival at the Whites' home, Deputy Weast told Mr. White of the reported child abuse and asked to examine his son, who could be seen from the doorway and appeared to the deputies to be about seven years old. Mr. White responded that his son was eleven years old, and refused to allow the deputies to examine his son without a warrant or court order. The child attempted to show the deputies his back, but Mr. White ordered him not to and to go to another room.

Deputy Weast insisted upon examining the child's back because he believed, based on Mr. White's conduct, that the child had been abused and would be injured or removed from the residence if the deputies were required to obtain a court order. Mr. White became violent and abusive and responded with extreme profanity and insults. This confrontation lasted fifteen to twenty minutes while Weast explained the reason for his investigation. When Deputy Weast attempted to enter the house, White assaulted him and pushed him back onto the porch. The deputies then forcibly subdued and handcuffed White. They did not strike or beat him. During the struggle, one of them placed an object against White's earlobe in an attempt to stop his resistance. The deputies then entered the house, examined the child's back, and found no signs of abuse. White was arrested and charged with assault and interfering with a police officer. These charges were later dismissed.

PROCEEDINGS BELOW

The Whites brought this Section 1983 action, contending that the deputies' warrantless entry into their home violated their Fourth Amendment right to be free from unreasonable searches and seizures, and that the deputies had used excessive force when arresting Mr. White. All defendants moved for summary judgment, supported by the affidavits of the three deputies. The Whites opposed this motion only with an unsworn "Statement of Reasons and List of Authorities in Opposition to Defendant's Motion for Summary Judgment," signed only by their attorney, who expressly disclaimed any personal knowledge. The defendants appeal the denial of their motion.

ANALYSIS

Appealability

Generally, the denial of a motion for summary judgment is not appealable. Simons v. United States, 497 F.2d 1046, 1050 (9th Cir.1974). However, the Supreme Court recently created a limited exception to this rule in Mitchell v. Forsyth, --- U.S. ----, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). "[A] district court's denial of a claim of qualified immunity, to the extent it turns on an issue...

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