Der v. Connolly

• Citation: 666 F.3d 1120
• Decision Date: 25 January 2012
• Docket Number: Nos. 11–1048,11–1162.,s. 11–1048
• Parties: Sandra DER; Gordon Der, individually and as parents and natural guardians for G.D., a minor, Appellants, v. Sean CONNOLLY, in his individual and official capacity; Mike Ammend, in his individual and official capacity; Isanti County, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

666 F.3d 1120

Sandra DER; Gordon Der, individually and as parents and natural guardians for G.D., a minor, Appellants,

v.Sean CONNOLLY, in his individual and official capacity; Mike Ammend, in his individual and official capacity; Isanti County, Appellees.

Nos. 11–1048

11–1162.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 19, 2011.Filed: Jan. 25, 2012.

Joseph J. Walsh, argued, Richard W. Curott, on the brief, Milaca, MN, for appellants.

Jason M. Hiveley, argued, Andrea B. Wing, on the brief, Bloomington, MN, for appellees.

Before BYE, SMITH, and COLLOTON, Circuit Judges.

SMITH, Circuit Judge.

Sandra and Gordon Der, individually and on behalf of their son G.D. sued, inter alia, Isanti County Deputy Sheriff Sean Connolly in his individual and official capacity under 42 U.S.C. § 1983 and relevant state law. The Ders sought damages for injuries allegedly suffered when Deputy Connolly entered their home without a warrant. A jury returned a verdict in favor of Deputy Connolly, and the district court ¹ denied the Ders' motion for a new trial. On appeal, the Ders seek a new trial, arguing that the district court gave erroneous jury instructions and made erroneous evidentiary rulings. We affirm.

I. Background

“We recite the facts in the light most favorable to the jury's verdicts.” White v. McKinley, 605 F.3d 525, 528 (8th Cir.2010) (quotation and citation omitted).

On the afternoon of April 22, 2008, R.D., Sandra's teenage son from a previous marriage, returned home from school. When he came home, Sandra was lying on the couch. She began screaming, yelling, and swearing at R.D., accusing him of taking the phone out of her hand and hanging it up, even though the phone was next to her. Sandra also called R.D. a “pig” and told him that he was fat. R.D. believed that his mother was drunk because she was “acting weird” and “slurring her words.” According to R.D., his mother's alcohol consumption had increased over the past couple of months. R.D. attributed the increase to his stepfather's absence. His stepfather, Gordon Der, was “on a trucking job” and “wasn't around much.”

R.D. left the home and went to a friend's house, where he called his father, Terry Darby, and asked Terry to pick him up. R.D. then went to his father's residence, where he talked to his father and his stepmother, Heather Darby, about what occurred. R.D. told Heather that he was “concerned about [his] [five-year-old] little brother [G.D.] because ... [his] mom was drunk.” Heather called 911 to ask the police to conduct a welfare check on G.D.

Deputy Connolly was dispatched to conduct the “welfare check on a five-year-old son and an intoxicated mother” at the Der residence. Deputy Connolly learned from information dispatched to his computer that “an anonymous caller had called in to dispatch stating that her 15–year–old had resided at this residence ... and [he] went to the neighbor's house to get away from his mother due to the fact that she was intoxicated and he did not feel safe there.” Additionally, the caller was concerned about the “status of the mother being intoxicated” and the welfare of the five-year-old son. Before arriving at the Der home, Deputy Connolly spoke to Heather, who gave him the same information that she had given dispatch, including her concern that the five-year-old son was sick and not getting the proper care, as he was with his “very drunk” mother.

At 9:45 p.m., Deputy Connolly arrived at the Der residence and knocked on the door for two to three minutes before “a female voice yelled out stop, knock it off.” Deputy Connolly identified himself and stated that he needed to speak with her. When Sandra opened the door, Deputy Connolly explained to her that he needed her to step outside so that he could speak with her regarding a phone call that he had received concerning the welfare of her children. Deputy Connolly “noticed a strong odor of an alcoholic beverage” on Sandra and that she “had bloodshot, watery eyes.” Sandra responded that Deputy Connolly could not enter the home and began shutting the door. Deputy Connolly could tell that Sandra was “a little bit more agitated.” As she was shutting the door, Deputy Connolly stopped the door with his foot to prevent it from closing. He was still standing outside the front entrance. He again explained that he needed Sandra to step outside to discuss the welfare of her children. Sandra responded, “F* *k you, you are not f* * * * *g coming in, go away.” She immediately attempted to shut the door. At that time, Deputy Connolly placed one of his hands on her wrist and tried to pull her outside the door to better control the environment and for his own safety.

Deputy Connolly let go of Sandra's wrist when two large, growling dogs appeared. Deputy Connolly told Sandra to restrain her dogs and put them away, but she refused. When he advised her that he would use force if the dogs tried to bite him, Sandra complied and secured the dogs. After putting the dogs away, Sandra returned to speak with Deputy Connolly. He again explained to her that he was only there to check on her children's welfare and her welfare based on a phone call that he received. He confirmed with Sandra that her five-year-old son was sick. She told Deputy Connolly that the child was upstairs. She then asked Deputy Connolly whether he “want[ed] to go upstairs to see him,” and Deputy Connolly replied “yes.” Thus, according to Deputy Connolly, Sandra consented to enter the home because “she basically said, yes, you can come up and check on my kid.” According to Deputy Connolly, once Sandra understood that he was only there to complete a welfare check on her children, she became more compliant and less irritable and belligerent.

Sandra and Deputy Connolly then walked upstairs and into the living room where G.D. was lying on the couch. Deputy Connolly was concerned because G.D. “appeared sickly, lethargic, [and] very pale.” While Deputy Connolly was evaluating G.D., Sandra began a telephone conversation; she raised her voice during the call. Deputy Connolly felt G.D.'s forehead and determined that the child had a high fever. Deputy Connolly then politely asked Sandra to end the phone call, but she refused. After asking additional times, Deputy Connolly explained to Sandra that her child was very sick. Sandra then ended the phone call. Deputy Connolly asked Sandra when she had last taken the child's temperature, and she replied “five to eight hours ago.” Deputy Connolly recommended that she take his temperature again. Sandra took G.D.'s temperature, which was 102.9 degrees. Sandra agreed his condition required attention.

After Sandra gave G.D. fever medication, Deputy Connolly continued with his investigation. He asked for Sandra's identification and called dispatch to inquire whether Sandra had any outstanding warrants. Deputy Connolly then asked Sandra if she had consumed any alcoholic beverages, and she indicated to him that she had one shot of hard liquor. Incredulous, Deputy Connolly told Sandra that she had bloodshot, watery eyes and a strong odor of alcohol. Deputy Connolly asked Sandra to consent to a portable breath test (PBT), and Sandra consented. The PBT indicated that Sandra had a blood-alcohol content of 0.20—over twice the legal limit.

To evaluate Sandra's child welfare awareness, Deputy Connolly asked if she knew R.D.'s whereabouts. Sandra responded that he was downstairs sleeping in the bedroom. Deputy Connolly suggested that Sandra go check on R.D., even though Deputy Connolly knew that R.D. was not there. After Sandra discovered R.D.'s absence, Deputy Connolly told Sandra that R.D. had left home because he felt unsafe due to her intoxication and was now with his father. Sandra then became agitated and began screaming at Deputy Connolly.

Deputy Connolly informed Sandra that, based on his observations of her, her intoxication, and the information that he had received from dispatch, he did not feel that she could properly care for G.D. Deputy Connolly told Sandra that she needed to find someone to take care of G.D. In response, Sandra “got pretty upset,” stating that she was “perfectly capable” of taking care of G.D. Deputy Connolly told her that he wanted someone at the home until she sobered up to take care of G.D. Sandra did not want to contact a family member to look after G.D. Deputy Connolly explained that the next option was to call Family Services. Sandra then “went into a rage.” She yelled, “I have a gun, I knew you were a cop out there, if I was going to answer the door and you would have come in, I would have shot ya.” Considering this threat and Sandra's irrational state, Deputy Connolly decided to handcuff Sandra for everyone's safety. Deputy Connolly asked Sandra to turn around and put her hands behind her back; he informed her that she was not under arrest. Sandra did not initially comply; instead, she asked why Deputy Connolly was putting her in handcuffs. Sandra eventually placed her hands behind her back. Deputy Connolly reached for one of her wrists, and Sandra pulled away. Deputy Connolly eventually handcuffed Sandra. Deputy Connolly then asked Sandra to sit, but she refused to comply. Deputy Connolly repeatedly told her to sit down.

After Sandra was handcuffed, Deputy Connolly spoke by phone with her husband and other family members to arrange for someone to come to the home. After a family member arrived, Deputy Connolly removed Sandra's handcuffs and left the residence.

The Ders, individually and on behalf of their son, G.D., subsequently brought suit under § 1983 and state law against, inter alia, Deputy Connolly. The lawsuit sought damages for injuries allegedly suffered when Deputy Connolly entered their home without a warrant. The Ders principally claimed that Deputy Connolly violated their Fourth Amendment rights by unreasonably entering their home, using excessive force against Sandra as he was entering the home, conducting an unreasonable...