Attocknie v. Smith

• Decision Date: 24 August 2015
• Docket Number: 14–7054.,Nos. 14–7053,s. 14–7053
• Citation: 798 F.3d 1252
• Parties: Nicole ATTOCKNIE, personal representative of the estate of Aaron Scott Palmer, as mother and next friend of M.P., a minor child, and individually, Plaintiff–Appellee, v. Shannon SMITH, individually and in his official capacity as Sheriff of Seminole County, Oklahoma, Defendant–Appellant, and Kenneth Cherry ; Tammy Wall, individually and in her official capacity as Administrator of Seminole County Special Programs, Defendants. Nicole Attocknie, personal representative of the estate of Aaron Scott Palmer, as mother and next friend of M.P., a minor child, and individually, Plaintiff–Appellee, v. Kenneth Cherry, Defendant–Appellant, and Shannon Smith, individually and in his official capacity as Sheriff of Seminole County, Oklahoma; Tammy Wall, individually and in her official capacity as Administrator of Seminole County Special Programs, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

798 F.3d 1252

Nicole ATTOCKNIE, personal representative of the estate of Aaron Scott Palmer, as mother and next friend of M.P., a minor child, and individually, Plaintiff–Appellee

v.Shannon SMITH, individually and in his official capacity as Sheriff of Seminole County, Oklahoma, Defendant–AppellantandKenneth Cherry ;

Tammy Wall, individually and in her official capacity as Administrator of Seminole County Special Programs, Defendants.

Nicole Attocknie, personal representative of the estate of Aaron Scott Palmer, as mother and next friend of M.P., a minor child, and individually, Plaintiff–Appellee

v.Kenneth Cherry, Defendant–AppellantandShannon Smith, individually and in his official capacity as Sheriff of Seminole County, Oklahoma;

Tammy Wall, individually and in her official capacity as Administrator of Seminole County Special Programs, Defendants.

Nos. 14–7053

14–7054.

United States Court of Appeals, Tenth Circuit.

Aug. 24, 2015.

Richard N. Mann, Assistant Attorney General, Oklahoma City, OK, for Defendant–Appellant Kenneth Cherry.

Jordan L. Miller (Chris J. Collins and Philip W. Anderson, with him on the briefs), Collins, Zorn & Wagner, P.C., Oklahoma City, OK, for Defendant–Appellant Shannon Smith.

Jack Mattingly, Jr., Mattingly & Roselius, PLLC, Seminole, OK (Tanner W. Hicks, Oklahoma City, OK, with him on the briefs), for Plaintiff–Appellee Nicole Attocknie.

Before HARTZ, HOLMES, and PHILLIPS, Circuit Judges.

Opinion

HARTZ, Circuit Judge.

On August 25, 2012, Aaron Palmer was shot dead by Deputy Sheriff Kenneth Cherry immediately after Cherry barged into Aaron's home in Seminole, Oklahoma. Having been commissioned by Seminole County Sheriff Shannon Smith, Cherry was serving as a compliance officer for the county's drug-court program. He was at Aaron's house to execute a year-old bench warrant for the arrest of Aaron's father, Randall Palmer, for failure to appear in court and failure to comply with his performance contract with the drug court. Cherry thought he saw Randall in Aaron's garage earlier in the day, and he arranged for support from other law-enforcement officers to apprehend Randall. When he returned to the area with other officers, he allegedly saw somebody who appeared to be Randall running through the garage into the house. He then sped to the front door of the house with gun drawn, pushed the door open, and fired his gun at Aaron, who was standing a few feet from the door, allegedly with a knife in his hand. Randall was not found on the premises.

Aaron's widow, Nicole Attocknie (Plaintiff), brought suit under 42 U.S.C. § 1983 on behalf of herself, Aaron's child, and Aaron's estate in the United States District Court for the Eastern District of Oklahoma. The suit claimed that (1) Cherry violated Aaron's Fourth Amendment rights by unlawfully entering the house and using excessive force, and (2) Smith (who was not present when Aaron was shot) violated Aaron's Fourth Amendment rights by failing to train or supervise Cherry.¹ Cherry and Smith both raised the defense of qualified immunity, but the district court denied their motions for summary judgment. On appeal Cherry argues that he is entitled to qualified immunity on the grounds that his entry into Aaron's house was justified by a hot pursuit of Randall (or at least the law was not clearly established to the contrary in August 2012) and that his use of force was appropriate in the face of a deadly weapon (the knife allegedly in Aaron's hand). Smith argues for qualified immunity on the ground that his failure to train or supervise Cherry did not show deliberate indifference to Aaron's constitutional rights.

We affirm the denials of qualified immunity to Cherry and Smith. Hot pursuit is the sole justification offered by the defendants for Cherry's entry of Aaron's home. But Plaintiff presented sufficient evidence that Cherry was not in hot pursuit of Randall when he entered the home and that the entry was therefore unlawful. And because the use of force would only have been necessary as a result of the entry, a jury could properly find that the unlawful entry caused Aaron's death. We therefore need not address whether the force used by Cherry upon his entry was in itself unreasonable and excessive. As for Smith, he cannot obtain relief on the only grounds he preserved in district court because they are based on a view of the evidence rejected by the district court.

We first discuss the doctrine of qualified immunity and our jurisdiction. We next address the facts and law relevant to Cherry's defense of qualified immunity and then we address Smith's defense.

I. QUALIFIED IMMUNITY AND JURISDICTION

“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (internal quotation marks omitted). The doctrine “balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. If a defendant asserts qualified immunity, the plaintiff has the burden to show that “(1) the defendant violated a constitutional right and (2) the constitutional right was clearly established” at the time of the challenged conduct. Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir.2012) (internal quotation marks omitted); see Pearson, 555 U.S. at 232, 129 S.Ct. 808. In general, “[t]he law is clearly established when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other courts shows that the right must be as plaintiff maintains.” Dodds v. Richardson, 614 F.3d 1185, 1206 (10th Cir.2010) (internal quotation marks omitted). “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Id. (internal quotation marks omitted). We review de novo the denial of a summary- judgment motion based on qualified immunity. See Morris, 672 F.3d at 1189.

Some of the usual rules governing appellate jurisdiction do not apply in the qualified-immunity context. Under 28 U.S.C. § 1291, appellate jurisdiction is limited to the review of final decisions, which ordinarily are decisions that end the litigation on the merits so that nothing remains for the court to do but to execute the judgment. See, e.g., Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1266 (10th Cir.2013). Orders denying summary judgment do not satisfy this general rule. But because qualified immunity protects public employees from the burdens of litigation as well as from liability, an order denying a summary-judgment motion asserting qualified immunity may be treated as a final decision under the collateral-order doctrine insofar as the appeal from such an order raises abstract legal questions.See id. at 1266–67. This limited interlocutory jurisdiction permits us to review “whether the set of facts identified by the district court is sufficient to establish a violation of a clearly established constitutional right” but not “whether the district court correctly identified the set of facts that the summary judgment record is sufficient to prove.” Morris, 672 F.3d at 1189 (internal quotation marks omitted).

Plaintiff contends that we lack jurisdiction because the district court based its denial of the summary-judgment motions on the existence of fact questions that must be resolved by a jury before the legal issues may be addressed. We have jurisdiction, however, because we may determine whether Cherry and Smith are entitled to qualified immunity by applying clearly established law to the facts for which the district court said there was sufficient supporting evidence. See id.; Medina v. Cram, 252 F.3d 1124, 1130 (10th Cir.2001). For context, we will also refer to some uncontroverted facts; and we will address some of Cherry's flawed arguments based on his version of events.

II. CHERRY'S APPEAL

A. Factual Background

In May 2011, Randall Palmer pleaded guilty in Seminole County District Court in two cases on felony charges of selling methamphetamine. He requested admission into the county's drug-court program and agreed to abide by the terms of a performance contract, one of which was the requirement that he attend all court sessions. He apparently failed to do so, and on September 9, 2011, a bench warrant issued, citing as the crime “Failure to Appear/Non–Compliance with Performance Contract.” Aplt.App. (Smith), Vol. 3 at 1227 (full capitalization omitted). The warrant stated no address. Randall had lived at 1931 Killingsworth Avenue in Seminole through 2008, but thereafter the only residents were his son Aaron, Plaintiff, their three-year-old daughter, and their foster son. Although he no longer lived there, Randall would come to the house when Plaintiff was not there.

Cherry testified that on August 25, 2012 (almost a year after issuance of the warrant) he saw a person he presumed to be Randall in Aaron's garage. He did not attempt to take Randall into custody at that time. Instead, he contacted the Seminole Police Department to enlist their assistance and then met with several police officers at a convenience store in Seminole to plan Randall's arrest. They arranged that Cherry would lead the other officers to Aaron's house, where some officers would follow Cherry as he went to the front of the house and others would cover the back to prevent Randall's escape.

Cherry testified that when he returned to the neighborhood of Aaron's house, he saw somebody who appeared to be Randall running through the garage into the house.

He immediately ran to the front door with gun drawn yelling “police,”...