Jenness v. Nickerson

• Decision Date: 15 February 1994
• Parties: Karen JENNESS, et al. v. Mark NICKERSON, et al.
• Court: Maine Supreme Court

Page 1152

637 A.2d 1152

Karen JENNESS, et al. v. Mark NICKERSON, et al.

Supreme Judicial Court of Maine.

Argued Jan. 6, 1994.

Decided Feb. 15, 1994.

Paul F. Macri (orally), Berman & Simmons, P.A., Lewiston, for plaintiffs.

Paul Stern (orally), Asst. Atty. Gen., Augusta, for defendants.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS, RUDMAN, and DANA, JJ.

WATHEN, Chief Justice.

Defendants Mark Nickerson and Conrad McNaughton (the Officers) appeal from an order of the Superior Court (Kennebec County, Delahanty, C.J.) denying a summary judgment on plaintiffs' federal Civil Rights Act, 42 U.S.C. § 1983, claim against them. The Officers argue that they are entitled to qualified immunity from plaintiffs' federal claim. Plaintiffs cross-appeal from that portion of the Superior Court's order that granted the Officers a summary judgment on all other claims against them and from a previous order (Mead, J.) granting defendant State of Maine's motion to dismiss all claims against it. Plaintiffs contend that the State is a proper defendant under the Maine Civil Rights Act, 5 M.R.S.A. §§ 4681-85 (Supp.1992), and that there are genuine issues of material fact concerning the Officers' violation of plaintiffs' civil rights and their immunity from claims under the Maine Tort Claims Act, 14 M.R.S.A. §§ 8101-8118 (1980 & Supp.1992). We conclude that defendants are immune from plaintiffs' claim, and we remand for entry of judgment for defendants on all claims.

This case arises from the execution of a search warrant at the residence of Richard Willette, his companion Karen Jenness, and their daughter on the night of January 4-5, 1990. Jenness and her daughter are plaintiffs here. They claim that the manner in which the Officers conducted the search violated their rights under the Maine and United States Constitutions and that the Officers' conduct gives rise to liability under the Maine Tort Claims Act.

This appeal results from the denial of a motion for a summary judgment. Ordinarily review of the denial of such a motion is barred by the final judgment rule. An exception is made for a motion based on immunity from trial which is lost if a summary judgment is improperly denied. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). The standard of review requires that "[t]he party seeking the summary judgment has the burden of demonstrating clearly that there is no genuine issue of fact. Any doubt on this score will be resolved against him and the opposing party will be given the benefit of any inferences which might reasonably be drawn from the evidence." 2 Field, McKusick & Wroth, Maine Civil Practice § 56.4 at 39 (2d ed. 1970) (footnotes omitted).

Viewed most favorably to plaintiffs, the facts may be summarized as follows: The Officers and other law enforcement personnel executed the search warrant at plaintiffs' residence starting between 11:00 p.m. and midnight. In a sworn affidavit in support of the warrant, Trooper Thomas Ballard stated that Willette "has several loaded firearms in the house. Officer safety is a consideration." In depositions, both Nickerson and McNaughton also stated that they were concerned about officer safety. Jenness admitted that a pistol and one or two rifles were in the house--the rifles in her bedroom.

When the Officers arrived at the Willette residence, they were admitted by Richard Willette. Nickerson immediately took him into custody and placed him face down on the floor. McNaughton proceeded to search the garage. Another officer went to the daughter's room. The lights were off. She testified that the officer pointed a gun at her, but pointed it down as soon as he saw that she was a child. Jenness testified that she saw the officer with his gun pointed at her daughter, but he put it down when they left her room.

Other officers went to Jenness's bedroom. Jenness was sleeping naked with the lights off. One officer pointed a gun at Jenness and ordered her to the floor. She grabbed at a pillow to cover herself. Someone grabbed her and she went to the floor, but she was not hurt. She lay on the floor naked, face down, with her feet to the door. Jenness testified that she didn't know how long she remained on the floor, but that it "seemed like forever, maybe ten minutes." The daughter could see Jenness and testified that it was a "[c]ouple minutes maybe" that Jenness lay on the floor before being brought out into the living room. During the time Jenness was on the floor, officers (including McNaughton) walked over her to search the bedroom. Guns were found in the bedroom during the search. One of the officers then let Jenness stand up, and a couple of seconds later gave her a sheet to cover herself and she was then seated on the living room couch.

The daughter asked to go to the bathroom within about five minutes of sitting down on the couch. Although her request was initially refused, eventually she was allowed to go, but the bathroom door was kept open. Jenness asked to get dressed just after sitting down on the couch. The second time she asked, about half an hour later, she was allowed to dress. Nickerson testified that the delay was necessary in order to ensure that the area was secure. He followed Jenness into the bedroom where she picked out some clothes, then to the bathroom where she changed. Nickerson did not allow Jenness to fully close the door. Jenness looked out at Nickerson several times while changing; he was looking away all but once, when "he looked in and said hurry up and turned his head." The daughter testified that Nickerson was staring out into the kitchen most of the time, but that he looked into the bathroom a couple of times.

The daughter was permitted to go to a neighbor's house at some time between 1:00 and 1:45 a.m. Jenness was not allowed to leave until near the end of the search, sometime between 4:00 and 5:00 a.m. Nickerson testified to several reasons for detaining Jenness, including a concern that evidence in other locations being searched could be destroyed if Jenness were released.

Nickerson questioned Jenness concerning her involvement with the stolen property. He never gave her a Miranda warning, testifying that there was no need as she was not a suspect. Jenness did not speak to a lawyer before or during questioning. She asked to speak to her attorney but the request was refused.

At some point during the search of the Willette residence, an officer found several photographs and showed them to Nickerson. The photographs included some of Jenness and Willette engaged in intimate activity, some of Jenness without clothes, and some of her daughter without clothes. Jenness initially refused to discuss the photographs and any improper involvement on the part of her daughter. She testified that Nickerson coerced her into a discussion by threatening that she could lose her daughter if she did not cooperate. Jenness explained the child's involvement satisfactorily, and the issue was dropped. During the discussion, Jenness looked into the living room and saw McNaughton on the telephone. He was looking at her, and she heard him say he was ready to make love. Jenness was then allowed to leave the house.

Plaintiffs filed suit against the Officers and the State alleging liability pursuant to the federal Civil Rights Act, 42 U.S.C. § 1983, for violations of the United States Constitution and liability under the Maine Civil Rights Act, 5 M.R.S.A. § 4681 et seq. ("MCRA") and the Maine Tort Claims Act, 14 M.R.S.A. § 8101 et seq. ("MTCA"). All claims against the State were dismissed by the Superior Court (Mead, J.). The court (Delahanty, C.J.) granted a summary judgment for the Officers on all claims against them under the MCRA and the MTCA, but denied a summary judgment on the federal Civil Rights Act claim.

Even considered in the light most favorable to plaintiffs, the facts demonstrate that the Officers are entitled to qualified immunity from the section 1983 claim against them. "[G]overnment officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (citations omitted); see also Davis v. Scherer, 468 U.S. 183, 194, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984) (qualified immunity available to state government actors); McNicholas v. Bickford, 612 A.2d 866, 870 (Me.1992). Our inquiry is very fact-specific: "in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Government actors are not "expected to determine the manner in which the law's grey areas will be clarified and refined." McNicholas, 612 A.2d at 870 (quoting Borucki v. Ryan, 827 F.2d 836, 838 (1st Cir.1987)).

The Officers here violated no clearly-established rights. Plaintiffs argue that the Officers' actions in interrogating Jenness without informing her of her Miranda rights and in not allowing her to remain silent amounted at the time to a clear constitutional violation. We note, however, "[a] simple failure to administer Miranda warnings is not itself a violation of the Fifth Amendment." Oregon v. Elstad, 470 U.S. 298, 304, 306 n. 1, 105 S.Ct. 1285, 1290, 1292 n. 1, 84 L.Ed.2d 222 (1985) (citation omitted). Also, at least prior to the actions at issue here, it was clear that there was no constitutional violation for questioning in the face of a refusal to talk, so long as that information was not used at trial. See id. at 304, 105 S.Ct. at 1290; Wilkins v. May, 872 F.2d 190, 194 (7th Cir.1989) ("Fifth Amendment does not forbid the forcible extraction of information but only the use of information so extracted in a criminal case").

Jenness argues that her right to counsel as guaranteed by...