Fishbein v. City of Glenwood Springs, Colorado
| Decision Date | 22 November 2006 |
| Docket Number | No. 05-1013.,05-1013. |
| Citation | 469 F.3d 957 |
| Parties | Scott FISHBEIN, by and through his mother and next friend, Shelley FISHBEIN; Aaron Hughes, by and through his father and next friend, Cliff Hughes; Shelley Fishbein; Mark Fishbein, Plaintiffs-Appellees, v. CITY OF GLENWOOD SPRINGS, COLORADO; Terry Wilson, individually and in his official capacity as Glenwood Springs Police Chief; Bill Kimminau, individually and in his official capacity as Glenwood Springs Police Lieutenant; Christopher M. Danielson; Neil Wagstrom, individually and in his official capacity as Glenwood Springs Police Officer; Aaron Munch, Defendants, and Bryan Keiter, individually and in his official capacity as Glenwood Springs Police Officer; Matthew Hagberry, individually and in his official capacity as Glenwood Springs Police Officer, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
J. Andrew Nathan and Bernard Woessner of Nathan, Bremer, Dumm & Myers, P.C., Denver, CO, for Defendants-Appellants City of Glenwood Springs, Colorado.
Theodore G. Hess of The Law Firm of Ted Hess, P.C., Glenwood Springs, CO, for Plaintiffs-Appellees, Scott and Shelley Fishbein.
Before BRISCOE, McCONNELL, and SILER,* Circuit Judges.
Glenwood Springs, Colorado, police officers claim their warrantless intrusion into the home of Mark and Shelley Fishbein was necessary to protect officers' safety. Mr. and Mrs. Fishbein claim the search violated the Fourth Amendment. While officers may not perform so-called protective sweeps simply as a matter of course, we conclude here that the defendant police officers reasonably believed they faced an imminent threat to their safety sufficient to justify their incursion. We REVERSE the judgment of the district court.
Shortly after noon on August 15, 2002, Dr. Mark and Shelley Fishbein returned their son Scott, 15, and his friend Aaron Hughes, 16, to the Fishbeins' home in Glenwood Springs, Colorado. The four of them had been out that morning for a visit to a nearby skate park. Having deposited the teenagers, Mark and Shelley retrieved two pistols from the house and set off again for Shelley Fishbein's tattoo shop in downtown Glenwood Springs.
Sometime later that afternoon, a 911 caller told the Glenwood Springs Police Department he had been threatened with a weapon by a couple police believed matched the description of Dr. and Mrs. Fishbein. Five officers responded to the subsequent dispatch, including Defendants Bryan Keiter and Matthew Hagberry. Officers Keiter and Hagberry and a third policeman located the Fishbeins outside their residence at just after 6:00 p.m., loitering next to their car parked across the street from the home. None of the three officers could discern whether either Dr. or Mrs. Fishbein was armed, though Officer Hagberry saw Dr. Fishbein repeatedly adjusting the waist area of his trousers, as if toying with a weapon. No officer attempted to make contact with the Fishbeins, opting instead to wait for backup.
Two additional officers arrived ten or fifteen minutes later, at just the time Dr. and Mrs. Fishbein left their car, crossed the street, and began to walk towards the house. To prevent the Fishbeins from entering their home, the five officers approached the couple on foot, weapons brandished. Four of the officers carried pistols, the other an AR-15 assault rifle. As Dr. and Mrs. Fishbein reached the lawn, the officers ordered them to get down on the ground. Dr. Fishbein immediately complied, but Mrs. Fishbein hesitated and then continued towards the front door. After repeated orders from the officers, Mrs. Fishbein eventually positioned herself face down on the lawn as directed, and she and her husband were handcuffed and placed under arrest.
One of the officers asked Mrs. Fishbein if there was anyone presently in the house. She replied, "My children are in the house, don't go inside." Appellants' App. at 395. Officer Keiter knew independently that the Fishbeins had at least one teenaged son. And Officer Hagberry, who had been to the Fishbein residence sixteen months before and observed there a sizable cache of weapons—multiple rifles, an AK-47, and two handguns—knew the Fishbeins kept firearms in the house as well, or had at one time. Officers Keiter and Hagberry entered the home together to conduct a protective sweep. As Mrs. Fishbein predicted, they found Scott Fishbein and Aaron Hughes inside, and escorted them to the front lawn. The officers then returned to the house and searched room to room, yelling "clear" as they went. Estimates regarding how long the officers were in the home range from thirty seconds to slightly less than five minutes. The officers did not remove any items from the residence.
Mark, Shelley, and Scott Fishbein, and Aaron Hughes and his father, Cliff, brought this action under 42 U.S.C. § 1983, claiming multiple violations of their Fourth Amendment rights. The Fishbeins' initial complaint named as defendants seven officers—the five who were present at the arrest and two supervising officers—and the City of Glenwood Springs. Following discovery and on the defendants' motion for summary judgment, the district court accepted the recommendation of the magistrate judge and dismissed all claims but the alleged unconstitutional entry into the Fishbeins' home. As to that claim, the district court rejected the defendant officers' assertion of qualified immunity and ordered the case to proceed to trial. Officers Keiter and Hagberry filed an interlocutory appeal from the district court's denial of their motion for qualified immunity.
"Orders denying qualified immunity before trial are appealable only to the extent they resolve abstract issues of law." Shrum v. City of Coweta, 449 F.3d 1132, 1137 (10th Cir.2006) (citing Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773, (1996)). An interlocutory appeal is improper when the question is the sufficiency of the evidence or the correctness of the district court's findings with respect to a genuine issue of material fact. Id. (citing Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)). Neither party to this case challenges our jurisdiction to review the interlocutory order of the district court denying qualified immunity, and both parties agree there are no disputed issues of material fact. The Fishbeins admitted all material facts Officers Keiter and Hagberry relied upon in their motion for summary judgment. Appellants' App. at 257-61, 392. The district court concluded that based on these undisputed facts, viewed in the light most favorable to the Fishbeins, the defendants lacked "reasonable grounds to believe there was an immediate need to search the house." Id. at 419. Given this judgment, our jurisdiction is proper under 28 U.S.C. § 1291.
The Report and Recommendation filed by the magistrate judge contains language that might suggest disputed questions of material fact. See Appellant's App. at 396 (); id. at 403 (). Elsewhere, however, the magistrate judge declared flatly that "there are no disputed material facts." Id. at 392. To the extent that the magistrate judge believed that the reasonableness of a search, based on undisputed facts, is a question for the jury, or that the case hinges on whether the officers, as a subjective matter, entertained reasonable concerns for their own safety, the magistrate judge was mistaken. The sole question for this Court on appeal is whether, based on undisputed facts and drawing all reasonable inferences in favor of the plaintiffs, the officers had an objectively reasonable basis for conducting a protective sweep. If they did not, they are not entitled to qualified immunity. This is purely a question of law, over which this Court has appellate jurisdiction.
Officers Keiter and Hagberry contend they are entitled to qualified immunity for their so-called protective sweep, a claim which, if true, effectively forces summary judgment in their favor. Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Once executive-branch officers assert a qualified immunity defense, the burden shifts to the plaintiffs to demonstrate that the officers (1) violated a federal right (2) that was clearly established at the time of the incident. Greene v. Barrett, 174 F.3d 1136, 1142 (10th Cir.1999). Because we conclude the defendants' protective sweep did not violate the Fourth Amendment, we hold the plaintiffs fail their burden.
We begin our analysis by determining whether the officers' protective sweep violated the Fishbeins' Fourth Amendment right to be free from "unreasonable searches and seizures." U.S. Const. amend. IV. A protective sweep is a cursory, limited search of a residence or other premises for the sole purpose of securing officers' safety during an arrest or investigation. United States v. Hauk, 412 F.3d 1179, 1185-86 (10th Cir.2005). The protective-sweep doctrine represents an exception to the Fourth Amendment's warrant requirement, theoretically akin to the exception for exigent circumstances. United States v. Wicks, 995 F.2d 964, 970 (10th Cir.1993). Police are permitted to search a premises without judicial pre-authorization when they reasonably believe, on the basis of articulable facts, that they face an imminent threat to their personal safety or that the safety of third parties is imminently threatened. Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Further, the...
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