Trent v. Wade

Decision Date14 September 2015
Docket NumberNo. 13–10960.,13–10960.
Citation801 F.3d 494 (Mem)
PartiesRoger Dale TRENT; Vickie Darlene Trent; Richard Dale Trent; Randal Dean Trent, Plaintiffs–Appellees, v. Steven WADE ; Mathew Walling, Defendants–Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Brian Patrick Shaw, Jr., Esq., Shackelford, Melton, McKinley & Norton, L.L.P., Dallas, TX, for PlaintiffAppellee.

William Wayne Krueger, III, Esq., Holly Danielle Craig, McKamie Krueger, L.L.P., Richardson, TX, Kevin Michael Curley, Esq., Fletcher, Farley, Shipman & Salinas, L.L.P., Dallas, TX, for DefendantsAppellants.

Appeal from the United States District Court for the Northern District of Texas.

ON PETITION FOR REHEARING EN BANC

Before DAVIS, ELROD, and COSTA, Circuit Judges.

Opinion

PER CURIAM:

The Court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor, rehearing en banc is DENIED. In the en banc poll, 5 judges voted in favor of rehearing (Judges Jones, Smith, Clement, Owen, and Graves), and 10 judges voted against rehearing (Chief Judge Stewart and Judges Jolly, Davis, Dennis, Prado, Elrod, Southwick, Haynes, Higginson, and Costa). Upon the filing of this order, the Clerk shall issue the mandate forthwith. See Fed. R.App. P. 41(b).

JENNIFER WALKER ELROD, Circuit Judge, concurring:

I write to address the opinion dissenting from denial of rehearing, which proceeds on the incorrect premise that the panel opinion created a new constitutional rule. From reading the dissent, one might even think the panel opinion created the knock-and-announce requirement itself. To the contrary, of course, the knock-and-announce requirement has existed for many, many years. It was Officer Wade who sought the creation of a new, per se exception to the knock-and-announce requirement. The panel merely declined that invitation and affirmed the district court's determination that material fact issues preclude summary judgment.

In Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the Supreme Court held that police officers entering a dwelling must knock on the door and announce their identity before entering, unless they “have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Id. at 394, 117 S.Ct. 1416. At the summary judgment stage of this case, the district court ruled that fact issues precluded summary judgment on the question of whether Officer Wade had reasonable suspicion that knocking and announcing his presence was dangerous or futile, or that it would inhibit effective investigation of a crime. The district court therefore denied Officer Wade summary judgment on qualified immunity grounds, stating that “there is a fact issue that Wade did not have a reasonable suspicion of activity that otherwise would negate the need to knock and announce his presence prior to entry.”1

In an effort to avoid the district court's determination that fact issues precluded summary judgment, Officer Wade asked the panel to create a new, per se exception to the knock-and-announce rule that would eliminate the knock-and-announce requirement for officers who are in “hot pursuit” of a suspect. Although “hot pursuit” is an exception to the warrant requirement, neither the Supreme Court nor our court has recognized it as an exception to the knock-and-announce rule. The panel declined to create this new, per se, “hot pursuit” exception, see Panel Op. at 17–18, reasoning that “hot pursuit” does not always make knocking and announcing “futile,” because other occupants in a house also are protected by the rule, id. at 11–16.2 The panel therefore held that Officer Wade's “hot pursuit” did not automatically excuse him from the requirements of the knock-and-announce rule. Id. at 18–19.

Officer Wade then argued that even if he violated the law, he did not violate “clearly established” law because no Supreme Court case clearly establishes that “hot pursuit” is not an exception to the knock-and-announce rule. That is not the correct framework for the analysis. When a party proposes a new exception to a constitutional rule, we do not ask whether the non-existence of that exception has been clearly established. Instead, we ask whether the constitutional rule itself is clearly established. Any other approach would allow officers to obtain qualified immunity in every single case simply by proposing a novel exception to the knock-and-announce rule and then pointing out that the novel exception had never before been rejected. See Panel Op. at 20 n.12.

The panel's approach was the same as the Supreme Court's in Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). In Groh, the officer argued that the Court should create a new exception to the particularity requirement: Petitioner asks us to hold that a search conducted pursuant to a warrant lacking particularity should be exempt from the presumption of unreasonableness if the goals served by the particularity requirement are otherwise satisfied.” Id. at 560, 124 S.Ct. 1284. The Supreme Court declined to create this new exception and then held that the particularity requirement (i.e. the constitutional rule) was clearly established, even though the Court had not previously addressed the petitioner's proposed exception thereto. The Court explained:

No reasonable officer could claim to be unaware of the basic rule, well established by our cases, that, absent consent or exigency, a warrantless search of the home is presumptively unconstitutional.... [P]etitioner is asking us, in effect, to craft a new exception. Absent any support for such an exception in our cases, he cannot reasonably have relied on an expectation that we would do so.

Id. at 564–65, 124 S.Ct. 1284.3

Like the officer in Groh, Officer Wade asked the panel to create a new exception to the knock-and-announce rule. Like the Court in Groh, the panel did not create the exception. Further, as in Groh, the panel held that no reasonable officer would be unaware of the constitutional rule that a no-knock entry is unconstitutional unless the officer has reasonable suspicion that knocking and announcing would be futile or dangerous or could jeopardize evidence. See Panel Op. at 20–21. Because the district court ruled that fact issues precluded a finding that any of those exceptions applied, and because the panel lacked jurisdiction on interlocutory appeal to review that conclusion, the panel held that Officer Wade was not entitled to summary judgment.

The dissent misunderstands the panel opinion. The dissent insists that the panel opinion created a new rule, which the dissent describes as requiring that an officer have “a reasonable suspicion of futility as to all occupants before making a no-knock entry.” This surely is the rule, but it is not one of the panel's creation; rather, this rule has existed for quite some time.See generally Wilson v. Arkansas, 514 U.S. 927, 931–36, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) (describing the common law background of the knock-and-announce rule). The dissent fixates on the phrase “all occupants,” as if the panel opinion's recognition that more than one person can live in a house was some sort of revelation. But alerting the residents of a house to your presence is not “futile” just because one of those residents already knows you are there—the other residents are also protected by the knock-and-announce requirement and may be willing to answer the door. The soundness of this principle is nowhere more evident than in this case, where, according to the plaintiffs, Officer Wade knew he was chasing a suspect into the suspect's parents' house, at a time when the parents likely were asleep.

The dissent's expressed concern about [t]he public safety consequences of this holding for the hapless officer and the residential occupants” is misplaced at best. As noted above, the knock-and-announce rule has a separate exception that applies when knocking and announcing might create danger to the officers or the occupants of the house. See, e.g., Richards, 520 U.S. at 394, 117 S.Ct. 1416. In this case, however, Officer Wade “declined to present evidence that spoliation or public danger were legitimate concerns.”

Simply put, neither the Supreme Court nor this court has recognized a per se “hot pursuit” exception to the knock-and-announce rule, and fact issues precluded the district court from deciding that Officer Wade had reasonable suspicion that knocking and announcing would have been futile under the circumstances of this case. Moreover, the knock-and-announce rule and its pre-existing exceptions are clearly established in the law, such that-on plaintiffs' version of the facts—a reasonable officer would have known that he could not enter the plaintiffs' house without knocking and announcing. Accordingly, the panel agreed with the district court that fact issues precluded summary judgment, and this court correctly denied the petition for en banc rehearing.

JONES, Circuit Judge, joined by SMITH, CLEMENT and OWEN, dissenting:

Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). Too often recently, panels of this court have strayed from the Supreme Court's longstanding reaffirmation of this principle in order to pursue their independent vision of sound policy or just to “let a jury decide” if a public official's conduct has gone too far. See, e.g., Luna v. Mullenix, 777 F.3d 221 (5th Cir.2014) (Jolly, J., dissenting from denial of rehearing en banc). But an official's negligence and mistakes of judgment are shielded not only from liability but also the cost and humiliation of lawsuits. Ashcroft v. al–Kidd, 563 U.S. 731, ...

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