Ernst v. City of Eugene
| Decision Date | 16 October 2012 |
| Docket Number | Case No. 6:10–cv–6245–AA. |
| Parties | Joann Allen ERNST, Jamie Allen, Joanna Allen, Plaintiffs, v. CITY OF EUGENE, a Municipality; Officer Joe Kidd, Officer Matt Lowen, Commander Jennifer Bills, in their individual capacity, and as a police official for the City of Eugene, Defendants. |
| Court | U.S. District Court — District of Oregon |
OPINION TEXT STARTS HERE
Brian L. Michaels, Marianne G. Dugan, Attorney at Law, Eugene, OR, for Plaintiffs.
Benjamin J. Miller, Jeffery J. Matthews, Harrang Long Gary Rudnick P.C., Eugene, OR, for Defendants.
Plaintiffs filed suit against the City of Eugene (the City) and three law enforcement officers alleging excessive force claims under 42 U.S.C. § 1983 and negligence and battery claims under state law. Plaintiffs' claims arise from the forcible and unannounced entry of their home during the execution of a search warrant. Plaintiffs seek economic, non-economic, and punitive damages as well as costs and attorney fees.
Defendants move for summary judgment on all claims. On July 9, 2012, the court heard oral argument and allowed supplemental briefing on the reasonableness of the force used to execute the warrant. After review of the argument and briefing, defendants' motions are granted with respect to plaintiffs' claims against Officer Kidd and the City and denied in all other respects.
At the time of the events in question, plaintiff Joann Allen Ernst resided with her two adult daughters, plaintiffs Jamie Allen and Joanna Allen, at 1295 Buck Street in Eugene, Oregon. Joann Allen Ernst's adult son, Jack Allen, also lived at this address.
During the spring and summer of 2009, Eugene Police Department (EPD) Officers Joe Kidd and Matt Lowen were investigating heroin trafficking in the Eugene area. In May of 2009, a confidential informant (CI) identified Rodney Brandon Kneece, Jack Allen, and Brian Jurrens as individuals involved in the distribution of heroin. According to the CI, Kneece would purchase large quantities of heroin in Portland, Oregon and transport the drugs to Eugene with the help of his girlfriend. The CI also stated that Jack Allen would deliver smaller amounts of heroin to buyers after Kneece coordinated the sales. Kidd Decl. Ex. 7 at 5 (doc. 82).
In late June 2009, Officer Kidd was dispatched to a dispute in West Eugene. Officer Kidd made contact with Kneece and his girlfriend, who admitted they had been arguing. After Officer Kidd obtained consentto search Kneece's pockets, he discovered cash and an ID card belonging to Brian Jurrens. Kneece informed Officer Kidd that he had been at Jack Allen's house prior to the dispute with his girlfriend, and that he (Kneece) and his girlfriend lived at 1910 Empire Park Boulevard. Kidd Decl. Ex. 7 at 6.
In early July 2009, Officer Kidd responded to a call regarding an injured person in West Eugene. Officer Kidd again made contact with Kneece, who evidently had been involved in an altercation. Officer Kidd obtained consent to search Kneece's person and found cash and a cell phone containing text messages consistent with the sale and purchase of drugs. Kidd Decl. Ex. 7 at 6–7.
On July 11, 2009, Officer Lowen questioned Kneece and Jurrens at a local hospital after receiving a report of a gunshot wound. Lowen Decl. Ex. 20 (doc. 92). Jurrens had a gunshot wound on his hand and told Officer Lowen that he was shot while adjusting a passenger-side seat in a vehicle. However, Kneece stated that Jurrens told him that he was shot accidentally by Jack Allen while at Allen's house at 1295 Buck Street. Officer Lowen disbelieved both of Jurrens's explanations and instead found the wound “consistent with an accidental, self-inflicted gunshot wound.” Lowen Decl. Ex. 20 at 8.
On August 6, 2009, Officer Lowen and Detective Sieczkowski of the Lane County Interagency Narcotics Enforcement Team contacted Kneece at 1910 Empire Park Boulevard. Kneece told the officers that he still lived there in a motor home and that Jurrens was inside a commercial building on the same property. Kneece also indicated that Jack Allen still lived at 1295 Buck Street and still sold heroin. Kidd Decl. Ex. 7 at 10.
On August 7, 2009 Officer Kidd submitted an affidavit in support of search warrants for 1910 Empire Park Boulevard and 1295 Buck Street. Officer Kidd's affidavit recounted his contacts with Kneece and included the information obtained from the CI and Kneece that Jack Allen was involved with the delivery of heroin. The affidavit also mentioned that Kneece reportedly had asked a friend to help him purchase a semi-automatic rifle in April of 2009. Kidd Decl. Ex. 7 at 10.
Officer Kidd requested authorization for twenty-four hour service of the warrants based on the following information:
I am aware that Rodney Brandon Kneece was convicted in 2005 for Aggravated Assault, was arrested earlier this year for Unlawful Discharge of a Firearm and was reported four months ago to be in the possession of an Olympic Arms K–30 semiautomatic rifle. I am aware that Brian Jurrens recently received a gunshot wound in one hand in an incident that, according to Kneece, involved Jack Allen at 1295 Buck St. I am aware that Brian Jurrens is on post-prison supervision for Robbery III and Elude by Vehicle. I am aware that Jack Allen was arrested earlier this year for interfering with a Police Officer and was arrested in 2007 and 2008 for Carrying a Concealed Weapon. I am aware that Rodney Brandon Kneece, Brian Jurrens, Jack Allen and [Kneece's girlfriend] have all been arrested for Delivery and/or Possession of Heroin in recent years. Due to the potential of them being armed with firearms, coupled with their illegal drug usage and dealing, I am requesting twenty-four hour service for this warrant.
Kidd Decl. Ex. 7 at 12–13. Omitted from the affidavit was Officer Lowen's conclusion that Jurrens's gunshot wound was accidentally self-inflicted, and that Jack Allen was not considered a suspect in the shooting. See Lowen Decl. Ex. 20 at 4–8.
On August 7, 2009, a state court judge authorized the warrants “to be executed any time of the day or night.” Kidd Decl. Ex. 8 at 2. The warrant did not authorize a particular type of entry or level of force to effectuate the search.
Under EPD General Order 1201.5, a search warrant affiant must complete a Planned Operations Risk Matrix (Risk Matrix) and assign numerical values to risks believed to be either present or unknown at the location of the search. Bills Decl. at 3 (doc. 129).
The Risk Matrix for 1295 Buck Street identified risks associated with Jack Allen's 2007 and 2008 arrests for carrying a concealed weapon (a knife), Allen's absconded status as a parolee, his alleged sale of drugs, and Jurrens's and Kneece's potential possession of firearms. Kidd Decl. Ex. 6 at 1 (doc. 89, under seal). The Risk Matrix totaled a number that “normally” indicates activation of the EPD Special Weapons and Tactics (SWAT) unit and requires consultation with a SWAT Commander. Kidd Decl. Ex. 6 at 2 (under seal).
Lieutenant Jennifer Bills, Commander of the SWAT unit, decided to utilize SWAT officers to serve the warrants at 1910 Empire Park Boulevard and 1295 Buck Street. Bill Decl. at 4 (doc. 129). Lt. Bills assigned scouts to observe 1295 Buck Street and report the presence of children, dogs, or obstacles to the house. Bills Decl. at 5 (doc. 129). She also directed the officers to draft a preliminary Operations Plan for execution of the search warrants.
Lt. Bills ultimately approved an Operations Plan for 1295 Buck Street that included the technique known as “breach and hold, where officers “breach” (i.e., break in) certain doors and windows of the building to be searched and control those areas from the exterior. Bills Decl. at 6 (doc. 129). The Operations Plan also called for the use of flash-bang devices and an armored vehicle, known as a “bearcat,” stationed in the front yard of the house. Lowen Decl. Ex. 13 at 43–44 (doc. 90, under seal); Bills Decl. at 3–4 (doc. 80). Although Lt. Bills approved the Operations Plan, Officer Lowen drafted it.
On August 11, 2009 at around 5:45 a.m., officers convened at 1295 Buck Street to execute the search warrant, approximately thirty minutes after execution of the warrant at 1910 Empire Park Boulevard. The entry team at 1295 Buck Street consisted of Officer Lowen and five other law enforcement officers. According to the Operations Plan, an additional fourteen officers were stationed at the sides of the house and at nearby locations. Lowen Decl. Ex. 13 at 51–53 (under seal). Officer Kidd was not present at 1295 Buck Street; he was involved with the search at 1910 Empire Park Boulevard and remained there to coordinate the search.
Officers did not announce their presence prior to entering plaintiffs' home. Instead, Officer Kyle Evans broke open the front door while Officer Lowen broke and cleared a large front window in the living room area. Officer Marcus Pope then “visually cleared” the area and tossed a flash-bang device into the front entryway.1Pope Decl. at 2. Jamie Allen and Joanna Allen testified that they heard several “big huge booms” that “shook the whole house,” apparently from the implement used to break open the front door. Jamie Allen Dep. at 29:22–24 (Nov. 4, 2011) (Miller Decl. Ex. 2) (doc. 78); see also Joanna Allen Dep. at 43:12–16 (Sept. 27, 2011) (Miller Decl. Ex. 3) (doc. 78); Jamie Allen Decl. at 1.
At about the same time, an officer stationed at the side of the house threw a second flash-bang device into the backyard, and two other officers broke and cleared windows to two bedrooms, shattering the glass. Based on photographs provided by defendants, glass shards landed on beds located directly beneath the windows, beds that were occupied at the time by Jamie Allen and Jack Allen. Lowen Decl. Exs. 18–19.
Plaintiffs also contend that a flash-bang device was thrown into Jamie Allen's bedroom, where she, her sister Joanna and a friend were...
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