O'Rourke v. City of Norman

Decision Date23 May 1989
Docket Number86-2219,Nos. 86-2098,s. 86-2098
Citation875 F.2d 1465
PartiesMichael W. O'ROURKE, Shirley M. O'Rourke and Kathleen O'Rourke, Plaintiffs-Appellants, v. The CITY OF NORMAN, a Municipal Corporation; Kelvin Winter and Doug McKenzie, individually and in their official capacity as duly authorized law enforcement officers for the City of Norman; and Steve Cain, individually and in his official capacity as a police supervisor and a duly authorized law enforcement officer for the City of Norman, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Micheal Salem of Salem Law Offices, Norman, Oklahoma, and Louis W. Bullock of Bullock & Bullock, Tulsa, Okl., for plaintiffs-appellants.

Burton J. Johnson (Patricia D. Herron, Asst. City Atty., Norman, Oklahoma, with him, on the briefs), of Looney, Nichols, Johnson & Hayes, Oklahoma City, Okl., for defendants-appellees.

Don Ed Payne of Payne & Welch, Hugo, Okl., and Louis F. Cooper, Bethesda, Md., filed an amicus curiae brief, for American Civ. Liberties Union of Oklahoma; Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., filed an amicus curiae brief, for American Civ. Liberties Union of the Nat. Capital Area; Karen L. Long of Watson & McKenzie, Oklahoma City, Okl., filed an amicus curiae brief, for Oklahoma Educ. Ass'n.

Before McKAY, BRIGHT * and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

This is an appeal from a judgment against the plaintiffs in a non-jury trial. O'Rourke v. City of Norman, 640 F.Supp. 1451 (W.D.Okla.1986). The plaintiffs' claim alleged a violation of 42 U.S.C. Sec. 1983 arising from the nighttime search of their home pursuant to a daytime bench warrant for contempt issued by a small claims court. Basing its decision on extensive findings of fact and erroneous conclusions of law, the district court awarded the defendants attorney's fees and costs totalling $19,956.34 from Micheal Salem, plaintiffs' attorney, pursuant to Rule 11 and 28 U.S.C. Sec. 1927, and $2,098.85 from the plaintiffs pursuant to Rule 11. These awards are also on appeal, and the cases are consolidated here.

The plaintiffs make the following conclusions and requests for relief from this Court:

1. The ruling of the trial court that the bench warrant was a felony and not a misdemeanor should be reversed as provided herein.

2. The ruling of the trial court that the invalidity of the bench warrant under state law is not relevant to a federal civil rights action should be reversed and appropriate declaratory relief and damages entered against Defendants, or in the alternative, this matter remanded for a new trial.

3. The policy, practice, procedure or custom of the Defendant City of permitting searches of homes incident to bench warrants and misdemeanors and in the absence of exigent circumstances should be declared unconstitutional as a violation of the Fourth Amendment.

4. The sanctions imposed against Plaintiffs and their counsel should be reversed.

5. This Court should enter an order of recusal and random reassignment of this action in the district court.

6. This Court determine the prevailing party for the purposes of this appeal and make an order providing for costs and attorneys fees as provided by 42 U.S.C. Section 1988.

Appellants Brief-in-Chief at 49.

Because we find that the district court erred in its conclusions of law which were at the very core of this Sec. 1983 claim, we REVERSE. Consistent with this reversal and plaintiffs' success on the substance of their complaint, we also REVERSE as to costs and attorney's fees awarded the defendants,

and REMAND on the issue of costs and attorney's fees for the plaintiffs as provided by 42 U.S.C. Sec. 1988.

I.

The following facts are relevant to this decision. 1 On May 16, 1983, at approximately 10:00 p.m., Officers Winter and McKenzie of the Norman Police Department in Oklahoma arrived at the home of the O'Rourkes to execute a state, daytime bench warrant for contempt. 2 The warrant was to be served on Deborah Boyd, the O'Rourkes' emancipated daughter. Obvious from the face of the warrant was that: (1) the order authorized the arrest of Deborah Boyd for contempt; (2) the warrant was issued on February 22, 1983--three months prior to its execution; (3) it was not endorsed for nighttime execution; and, (4) the warrant was issued for failure to appear in a small-claims proceeding as designated by "SC" before the warrant number. 3 Nevertheless, despite all of these factors, police officers Winter and McKenzie entered the O'Rourke home at 10:00 p.m. (O'Rourke, 640 F.Supp. at 1455.) They asked if Deborah Boyd were there; the O'Rourkes answered in the negative and this was undisputed at trial. 4 (O'Rourke, 640 F.Supp. at 1456.) Mr. O'Rourke, doubtful of the legality of the nighttime search of his home, telephoned the Norman Police Department and spoke with Lt. Cain, the supervisor on duty. Lt. Cain informed Mr. O'Rourke that he already knew of the search and that "if the officers had a warrant for Boyd's arrest and probable cause to believe that she might be in the residence, they did not need a search warrant and did have a right to enter the residence and search for Boyd." (O'Rourke, 640 F.Supp. at 1456.) Lt. Cain did not address the validity of the nighttime execution of a daytime bench warrant, whether Deborah Boyd was at the home, or whether, indeed, the O'Rourke home was Deborah Boyd's residence or a third party residence. The conversation terminated with Mr. O'Rourke informing Lt. Cain that the officers did not have his permission to search his home. (O'Rourke, 640 F.Supp. at 1456.) Mr. O'Rourke then called upon his daughter, Kathleen, and wife to witness his statements to the police officers that he would not interfere with the search, but was not in any way consenting to it. (O'Rourke, 640 F.Supp. at 1456.) At trial, Lt. Cain testified he would not have stopped the officers from searching.

The police officers searched every room in the O'Rourke home. They even searched a bedroom in which the O'Rourkes' two year old grandson lay sleeping. It was undisputed at trial that the police officers were courteous and the district court so held. (O'Rourke, 640 F.Supp. at 1457.) Deborah Boyd was not in the O'Rourkes' home at the time of the search, nor was there any evidence that she had been.

At trial, the defendants called as an expert witness, Samuel Chapman, a Professor of Political Science at the University of Oklahoma and instructor at the Norman Police Academy. He acknowledged instructing many of the Norman police officers, including some of the defendants, and opined that the police officers "performed within the context of accepted police practice." Furthermore, he agreed with or recalled making comments to the effect that "[w]hether or not it's the person's residence is not the obligation of the Police. They are looking for a person; not a residence.... If it's the home of a third person and she does not live there, but probable cause exists to believe she is there, it's not intrusive and improper police procedure to search." Clearly he did not have a working knowledge of Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), decided three years prior. 5 Chapman went on to testify that the search of the O'Rourkes' home was not a search at all--it was merely a "recognizance." This is contrary to all Fourth Amendment law known to this Circuit. 6

Also admitted into evidence and relevant to this appeal was a copy of an "Office Memorandum" written by Norman Police Captain DeBolt, and addressed to City of Norman Police Chief, Don Holyfield. The subject was "Investigation, Conclusion and Recommendations Concerning Complaint 83-09." Complaint 83-09 was filed by Mr. O'Rourke on the evening of the search. In pertinent part, the office memorandum contained erroneous conclusions of law--in fact, very old law. As to the authority of the police to make a home arrest pursuant to an arrest warrant, the memo cited Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Dorman v. United States, 435 F.2d 385 (D.C.Cir.1970). There was no mention of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the Supreme Court's constitutional mandate at the time of the search and for the three years prior. 7 Also contained in the memo was the following statement, "Appellate courts are not clear on this issue. Some courts have affirmed the power of the police to search residences not that of the defendant, if they have probable Quoting from appellants' brief, "The facts of this case start small, 9 but like a[n] ... avalanche, sweep down the constitutional slope of the Fourth Amendment and to date have gathered a record on appeal approaching 1000 pages and a trial transcript of over 1250 pages."

                cause to believe that the defendant is therein;  others have denied that power."    Obviously the Captain was ignorant of Steagald, controlling law at the time and for the two years prior.  In the same memo, Captain DeBolt declared the search of the O'Rourke home illegal because the warrant was improperly served in the nighttime. 8   At trial, Norman Police Chief Don Holyfield testified that he read the report of Captain DeBolt and agreed with it, but questioned only the paragraphs relating to the necessity of a night endorsement for a bench warrant
                
II.
A.

The prerequisite question we must address is whether the bench warrant issued for contempt of court was a felony warrant under Oklahoma law. If it were a felony warrant, nighttime execution would have been authorized under Oklahoma law, and constitutionally valid. The district court held that contempt in Oklahoma was a felony at all relevant times to this case. The basis for its determination was federal criminal law, common law, and de novo statutory interpretation. We disagree with its determination, and the legal reasoning used to arrive at it.

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