King v. Marmon, Civ. A. No. 91-2012-L.

• Decision Date: 15 June 1992
• Docket Number: Civ. A. No. 91-2012-L.
• Citation: 793 F. Supp. 1030
• Parties: Vicki P. KING and Vicki P. King as Heir at Law of James E. King, Plaintiff, v. Daryl MARMON, et al., Defendants.
• Court: U.S. District Court — District of Kansas

793 F. Supp. 1030

Vicki P. KING and Vicki P. King as Heir at Law of James E. King, Plaintiff, v. Daryl MARMON, et al., Defendants.

Civ. A. No. 91-2012-L.

United States District Court, D. Kansas.

June 15, 1992.

John P. Gerstle, David R. Gilman, Overland Park, Kan., Benjamin C. Wood, Lawrence, Kan., for plaintiff.

Maurice J. Ryan, City of Kansas City, Kansas, Kansas City, Kan., Lawrence L. Ferree, III., Catherine J. Watson, Ferree, Bunn & Byrum, Chtd., Overland Park, Kan., for defendants.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

This case arises out of a police raid on the residence of James King which resulted in the fatal shooting of James King by two police officers. The raid was a joint effort between police officers from Olathe and Kansas City, Kansas. The plaintiff in this case is Vicki King, who was the wife of James King. Plaintiff is asserting claims under 42 U.S.C. § 1983 for excessive force and unreasonable search and seizure, along with pendent state law negligence and false imprisonment claims. The claims are asserted against seventeen officers of the Olathe and Kansas City, Kansas police departments in their official capacities and individually.

On January 8, 1992, a hearing was conducted in this court on the Motion for Summary Judgment filed by the Olathe officers (Doc. # 66). For the reasons set forth on the record in the hearing, defendants' motion was denied as to the Section 1983 excessive force claim and the state law negligence claim. The court took the matter of the Section 1983 unreasonable search and seizure claim under advisement. For the reasons set forth below, the defendants' motion for summary judgment is denied as to the Section 1983 unreasonable search and seizure claim.

The Olathe police had an individual in custody who informed the police that James King had been involved in several burglaries and that he possessed stolen merchandise at his house. The Olathe police proceeded to put King's house under surveillance and obtained a search warrant for the house. The facts crucial to a determination on defendants' summary judgment motion regarding the plaintiff's Section 1983 claim for unreasonable search and seizure are those involving the knowledge and conduct of the officers during the actual raid on the residence.

It is undisputed that during the briefing and preparation for the raid on the residence the officers were informed that James King was to be considered armed and dangerous. The officers were also informed that several guns were kept inside the residence, including a sawed-off shotgun, a second shotgun, and several revolvers.

The parties' accounts of the circumstances of the raid are at odds. The officers claim that they identified themselves as police officers with a warrant immediately before forcing open the front door and entering the house. They further claim that as they searched the house they made repeated identifications of themselves as police officers. Plaintiff states in her deposition testimony that the officers did not identify themselves in any manner prior to entering the house, nor did the officers identify themselves at any time prior to the shooting of Mr. King.

Following the entry of the officers into the house, it is undisputed that officers Matthew Smith of the Olathe police and Daryl Marmon of the Kansas City, Kansas Police Department confronted Mr. King. Mr. King was standing at the top of the stairs with a sawed-off shotgun in his hand. There is some dispute about the exact position of the shotgun King was holding, but there is no dispute that Officers Smith and Marmon discharged their weapons at King without yelling any type of warning. King was shot seven times, including once in the back.

The defendants' chief argument is that summary judgment on the plaintiff's Section 1983 unreasonable search and seizure claim should be granted on the basis of qualified immunity.

"The doctrine of qualified immunity provides that government officials `generally 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.'" Rozek v. Topolnicki, 865 F.2d 1154, 1157 (10th Cir.1989) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)).

The Tenth Circuit has articulated the framework for analyzing a claim of qualified immunity on summary judgment. Dixon v. Richer, 922 F.2d 1456 (10th Cir. 1991). Once a defendant raises the defense of qualified immunity, the plaintiff carries the burden of convincing the court the law was clearly established. Id. at 1460. The plaintiff must "come forward with facts or allegations sufficient to show both that the defendant's alleged conduct violated the law and the law was clearly established when the alleged violation occurred." Id. (quoting Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir.1988)). The "contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). If the plaintiff does not meet this initial burden, the government official is properly spared the burden and expense of proceeding any further, and should be granted summary judgment. On the other hand, if the plaintiff demonstrates to the court that the defendant's alleged conduct violated a clearly established right, then the defendant assumes the normal burden of a movant for summary judgment of establishing that no material facts remain in dispute that would defeat his or her claim of qualified immunity. Id.

The plaintiff in this case claims that the officers failed to comply with the knock and announce rule of 18 U.S.C. § 3109 before entering Mr. King's house, thereby making the raid and subsequent search of the house unlawful and in violation of plaintiff's constitutional rights. Although the search in this case was conducted by state officers pursuant to a state warrant, the rule incorporated by Section 3109 is merely expressive of the common law rule and thus is equally applicable in the state context. Simons v. Montgomery County Police Officers, 762 F.2d 30, 33 (4th Cir. 1985). The statute states:

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

The purpose of the statute is to protect officers, as well as occupants, from physical harm, to protect the occupant's right of privacy in his home, and to protect against needless disruption of private property. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). The statute requires law enforcement officials to announce their authority and purpose, and to be denied admittance, before they break down the door of a house. Id. at 306, 78 S.Ct. at 1194.

Courts have recognized that compliance with the requirements of Section 3109 may be excused by "exigent circumstances." The term "exigent circumstances," in conjunction with the entry of a residence during the execution of a search warrant, refers to those situations where the officers believe there is an emergency situation and their belief is objectively reasonable. United States v. Stewart, 867 F.2d 581, 584 (10th Cir.1989). The reasonableness of the officers' conduct hinges on the facts within their knowledge indicating exigency. United States v. McConney, 728 F.2d 1195, 1206 (9th Cir.1984).

Section 3109 contains two separate requirements. The first is that officers knock and announce their authority and purpose. The second is that the officers be refused admittance. An officer's reasonable belief that announcement might place him or his associates in physical peril constitutes an "exigent circumstance" that justifies non-compliance with the announcement provisions of the statute. United States v. Manfredi, 722 F.2d 519 (9th Cir. 1983); United States v. Kane, 637 F.2d 974 (3d Cir.1981). As to the second requirement of Section 3109, courts have found that only a mild indication of exigency is required to excuse non-compliance with the "refusal of admittance" requirement if no physical damage to the premises is necessary to enter, although more specific inferences of exigency are necessary when physical disruption of property is required to enter. United States v. Tedesco, 635 F.2d 902 (9th Cir.1980).

In this case the officers claim that they knocked and announced their authority, then immediately entered the King residence. The officers contend their noncompliance with the refusal of admittance requirement of Section 3109 was justified due to their belief that compliance with that provision would place the officers in physical peril. It is undisputed that in the briefing and preparation for the raid on the King residence, the officers were informed that James King was to be considered armed and dangerous and that there were several firearms located in the residence. Based on prior case authority, this court finds that these circumstances are sufficient to create an "exigent circumstance" to justify non-compliance with the refusal of...