O'Brien v. City of Grand Rapids

• Decision Date: 18 July 1994
• Docket Number: No. 92-1549,92-1549
• Citation: 23 F.3d 990
• Parties: Joseph J. O'BRIEN, Plaintiff-Appellee, v. CITY OF GRAND RAPIDS; William Hegarty; Daniel Ostapowicz, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 990

23 F.3d 990

Joseph J. O'BRIEN, Plaintiff-Appellee, v. CITY OF GRAND RAPIDS; William Hegarty; Daniel Ostapowicz,

Defendants-Appellants.

No. 92-1549.

United States Court of Appeals, Sixth Circuit.

Argued June 8, 1993.

Decided May 3, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied July

18, 1994. ^*

Nancy L. Dilley, Fred Dilley (argued and briefed), Dilley & Dilley, Grand Rapids, MI, for plaintiff-appellee.

G. Douglas Walton, Dep. City Atty. (briefed), Margaret P. Bloemers (briefed), City Attorney's Office for the City of Grand Rapids, Grand Rapids, MI, Grant J. Gruel (argued and briefed), Thomas Richard Behm (briefed), Gruel, Mills, Nims & Plyman, Grand Rapids, MI, for defendants-appellants.

Before: KEITH and RYAN, Circuit Judges; and JOINER, Senior District Judge. ^**

RYAN, Circuit Judge, delivered the opinion of the court. JOINER, Senior District Judge (pp. 23-30), delivered a separate concurring opinion as to Part II B and delivered the opinion of the court with respect to the issues discussed in Part II C to which Judge Ryan dissents. KEITH, Circuit Judge (p. 31), delivered a separate opinion concurring in part and dissenting in part.

RYAN, Circuit Judge.

Plaintiff Joseph O'Brien brought this 42 U.S.C. Sec. 1983 action against the City of Grand Rapids, Police Chief William Hegarty, and Officer Daniel Ostapowicz, alleging that the defendants violated his Fourth Amendment rights when they searched his house and used excessive force to effect his arrest. The district court entered judgment as a matter of law against all three defendants on the basis of the court's conclusion that they violated O'Brien's Fourth Amendment rights by authorizing a warrantless search of his house. The defendants appeal and raise the following issues:

1) Whether the district court erred in ruling that O'Brien's Fourth Amendment rights were violated when the police conducted three physical "probes" of O'Brien's house without a warrant;

2) Whether the district court erred in ruling that Hegarty and Ostapowicz were not entitled to qualified immunity; and

3) Whether the district court erred in ruling that the search was the result of official city policy, custom, or practice making the city liable for the constitutional violation.

We conclude that the district court correctly ruled that O'Brien's Fourth Amendment rights were violated when his house was searched without a warrant. However, we conclude that the district court erred when it determined that Hegarty and Ostapowicz were not entitled to qualified immunity and when it concluded as a matter of law that the search was a result of official policy, custom, or practice. We shall therefore reverse the district court's order granting judgment for O'Brien and remand with instructions to enter judgment in favor of the defendants.

I.

On October 6, 1987, court officer Bart Baker of the 61st District Court in Grand Rapids, Michigan, attempted to seize, pursuant to a writ of seizure, plaintiff O'Brien's pick-up truck to satisfy a $34,000 civil judgment that had been entered against O'Brien. The truck was parked in the street in front of O'Brien's house. Officer Baker requested police assistance because he was aware that a default judgment had been entered against O'Brien as a result of a lawsuit in which the plaintiff in that case claimed that O'Brien intentionally shot him in O'Brien's yard.

Officer Dennis Johnson of the Grand Rapids Police Department arrived in uniform to assist Officer Baker. Officer Johnson knocked on the front and back doors of O'Brien's house in an attempt to let O'Brien know that Baker was about to seize his truck, but O'Brien did not respond. Neighbors informed Johnson that O'Brien was home but probably would not answer the door, and that he was reclusive and often acted strange. At approximately 11:50 a.m., when O'Brien had not responded, Johnson instructed Officer Baker to seize the truck. Johnson stood guard on O'Brien's front lawn while a tow truck was hooked up to O'Brien's truck. Johnson suddenly noticed O'Brien standing in his doorway behind the closed storm door, carrying a rifle in the port arms position. The tow truck driver and a neighbor ran for cover while Officers Baker and Johnson drew their weapons. Johnson ordered O'Brien to drop his weapon. O'Brien yelled, "Leave my truck alone! Get out of here!" He then retreated into his house and shut the door. O'Brien did not point the rifle at anyone, and he did not verbally threaten to use it.

After the officers took cover, Johnson called for backup, and within a few seconds other officers responded to the scene, including the Neighborhood Patrol Unit (NPU). The NPU officers are specially trained to manage "critical incidents" involving "barricaded gunmen." At Johnson's request, Lieutenant Ostapowicz, ¹ the shift commander, and the Chief of Police, William Hegarty, had authorized the NPU to respond to the scene. As shift commander, Ostapowicz became the scene commander of the situation involving O'Brien. Although the NPU was responsible for managing the situation, any action had to be authorized by the scene commander.

The police evacuated the neighborhood and secured the perimeter around O'Brien's house. Trained negotiators arrived at the scene at 12:30 p.m. They repeatedly tried to reach O'Brien via telephone, but O'Brien would not answer their calls. Negotiators also attempted to communicate through a bullhorn; however, O'Brien did not respond. Chief Hegarty arrived at the scene at 2:20 p.m., left shortly thereafter, and returned at 5:00 p.m. At 4:05 p.m., O'Brien's father attempted to talk with his son through the bullhorn. Still there was no response from O'Brien. Officials tried for nearly six hours to communicate with O'Brien; however, they never informed O'Brien that he was under arrest. At trial, Hegarty testified that he was not sure that O'Brien had violated any laws during those six hours for which he could be arrested. During the first six hours of the stand-off, police gathered information on O'Brien and learned that he had a history of physical and mental problems and that he had been arrested in the past for violent behavior but was subsequently cleared of any charges. From the information gathered by the police, Ostapowicz concluded that O'Brien was mentally unstable, unpredictable, and very dangerous.

By late afternoon, Ostapowicz and Chief Hegarty developed and authorized a response plan that included the use of three "probes" that would allow an officer to see inside the house. According to the defendants, the purpose of the probes was to ascertain where O'Brien was in the house in order to better communicate with him. Chief Hegarty later testified that they did not believe a search warrant was required for the probes because it was not the department's policy to seek warrants while a critical incident involving a barricaded gunman was in progress. Hegarty also testified that there was no need for a search warrant because the officers did not need, nor did they intend, to search the house.

At approximately 4:25 p.m., Chief Hegarty and Ostapowicz authorized the first probe of O'Brien's house. At 4:29 p.m., Officer Gary Ingalls pulled back the chicken wire and screen that covered a living room window. He applied mirrors to the window frame in an attempt to determine O'Brien's location in the house, but Ingalls could not see inside the house because the window was dirty. At 5:25 p.m., Officer Ingalls used a sledge hammer to break part of the window so that he could see into the living room with the mirror probe and so that O'Brien could hear the bullhorn. Ingalls could view the interior of the living room through the probe, but he could not see O'Brien.

A negotiator continued to use the bullhorn to communicate with O'Brien. Finally, according to police testimony, at 5:51 p.m. O'Brien responded, yelling, " 'I don't want to go to jail.' " At 5:55 p.m., Ingalls broke the glass from the upper half of the living room window. In response, O'Brien fired approximately ten shots at the police. Later, Hegarty agreed that O'Brien presented "no overt physical, hostile threat at any time from 11:50, when he closed his door, until 5:56 when the shot was fired."

At 6:27 p.m., Chief Hegarty issued a shoot-to-kill order. During the next two hours, the police continued trying to communicate with O'Brien. They eventually used tear gas and stun grenades in an attempt to force him out of the house, or at least to talk. These efforts were unsuccessful. At 8:43 p.m., approximately nine hours after the incident began, acting on Hegarty's orders to shoot to kill, Officer Stan Lis shot O'Brien in the neck after he spotted his silhouette in the kitchen window. The police entered the house, arrested plaintiff, and placed him in an ambulance. The bullet severed O'Brien's spinal cord and rendered him a quadriplegic. O'Brien was not charged with any crime as a result of his initial confrontation with Officer Johnson, but he was charged with attempted murder and convicted of assault because of the shots he fired at the police officers after the 5:55 p.m. probe.

O'Brien filed a complaint against the City of Grand Rapids and several officers at the scene, alleging claims pursuant to 42 U.S.C. Sec. 1983 for deprivation of his rights under the Fourth Amendment, as well as state assault and battery claims. O'Brien alleged that his Fourth Amendment rights were violated when the police searched his house and when they used excessive force to effect his arrest. O'Brien subsequently amended his complaint to include Police Chief Hegarty and Captain Ostapowicz. Jury trial commenced on January 21, 1992. During O'Brien's case in chief, the trial court entered judgment as a matter of law against Hegarty and Ostapowicz on O'Brien's unreasonable search claim. The court ruled that the defendants violated O'Brien's Fourth Amendment rights when they authorized three physical probes of his house...