Kraus v. Pierce County

• Decision Date: 17 September 1986
• Docket Number: No. 85-4190,85-4190
• Citation: 793 F.2d 1105
• Parties: Dale E. KRAUS and Rosetta M. Kraus, husband and wife; Cindy D. Kraus, individually; and Todd W. Montgomery, individually, Plaintiffs-Appellees, v. COUNTY OF PIERCE, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1105

793 F.2d 1105

Dale E. KRAUS and Rosetta M. Kraus, husband and wife; Cindy D. Kraus, individually; and Todd W. Montgomery individually, Plaintiffs-Appellees, v. COUNTY OF PIERCE, et al., Defendants-Appellants.

No. 85-4190.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 4, 1986.

Decided July 8, 1986.

As Amended Sept. 17, 1986.

Monte E. Hester, Tacoma, Wash., for plaintiffs-appellees.

Daniel R. Hamilton, Tacoma, Wash., for defendants-appellants.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, SNEED, and SCHROEDER, Circuit Judges.

SCHROEDER, Circuit Judge.

This is a 42 U.S.C. Sec. 1983 action against several Pierce County Sheriff's Deputies and the County of Pierce for damages arising out of an allegedly unlawful seizure of the plaintiffs and search of their home. This appeal is from the district court's denial of defendants' motion for summary judgment.

Because denials of motions for summary judgment are ordinarily unappealable interlocutory orders, see Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d Sec. 2715, at 636 (1983), this appeal presents a threshold question of our jurisdiction. See 28 U.S.C. Secs. 1291, 1292. We hold, following the Supreme Court's recent decision in Mitchell v. Forsyth, --- U.S. ----, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), that we have limited jurisdiction to consider the defense of qualified immunity raised by the individual defendants in their motions for summary judgment. We affirm the district court's denial of summary judgment as to the claimed unlawful seizure, and reverse the district court's denial as to the claimed unreasonable search.

FACTS

Our review of rulings on summary judgment is de novo and we view the facts in Plaintiffs are Dale and Rosetta Kraus, their daughter Cindy Kraus, and a friend, Todd Montgomery. On the evening of September 29, 1984, the plaintiffs were in the Kraus residence watching television when Dale Kraus received a phone call from a dispatcher of the Pierce County Sheriff's Office. The dispatcher instructed Kraus to come outside the house for interrogation by awaiting officers. There is nothing in the record to indicate that any of the plaintiffs knew of any reason why any one of them could be the object of such an interrogation.

                the light most favorable to the nonmoving party, in this case the plaintiffs.   See, e.g., Water West, Inc. v. Entek Corp., 788 F.2d 627, 628-29 (9th Cir.1986)
                

Kraus obeyed the instruction to go outside, and Montgomery followed. Upon exiting the home, the two found themselves bathed in floodlights and surrounded by at least five sheriffs' deputies, some of whom had weapons drawn. The deputies ordered Kraus and Montgomery to put their arms over their heads and drop to their knees. After some period of observation, the deputies informed the plaintiffs that neither Kraus nor Montgomery, both of whom are white males, fit the description of the robber for whom they were looking, a black male. The deputies then informed the plaintiffs that they desired to ask them some questions. At Mrs. Kraus' suggestion, the deputies conducted the questioning inside the house and eventually left the premises.

What prompted the plaintiffs' frightening confrontation with the police was a robbery earlier in the evening in which the plaintiffs were not in any way involved. An armed black male committed the robbery at a First Interstate Bank machine in the Villa Plaza shopping mall in Pierce County. The robbery occurred at approximately 8:00 p.m. on a Saturday night. Robert Kay saw the robbery and spoke to the victim just after it had occurred. Kay then chased the robber who ran into a crowded drug store parking lot some distance from the machine.

Kay then apparently lost sight of the robber, but observed a red hatchback automobile leave the parking lot at a rapid speed. He stated in his affidavit that the car "rolled through the stop signs where the parking lot enters onto Bristol Avenue and where Bristol Avenue meets 100th Street Southwest" and that it "accelerated rapidly eastbound on 100th Street." He followed the car long enough to write down the license plate number, "Kraus 2", and then reported the robbery and license number to the sheriff's office.

The sheriff's office used the information to determine the address of the owners of the car and made no further inquiries of Kay. The officers did not ask Kay whether any occupant of the vehicle looked like the robber, or why he believed the car was connected with the robbery. It immediately dispatched several deputies to the address of the car's owners, the plaintiffs Kraus.

When the deputies arrived, they saw the hatchback parked at the house and determined that its hood was still warm. The deputies decided to surround the front of the house, draw their weapons, bring the occupants out of the house, shine floodlights on them, and then interrogate them. This action was based only upon the observation that the hood of the hatchback was warm and information that the hatchback had sped away from the crowded parking lot shortly after a robbery suspect had entered the parking lot on foot.

Plaintiffs filed this civil rights action, and the defendants moved for summary judgment on various theories. All the motions were denied, and the defendants appeal, arguing that the motions should have been granted.

JURISDICTION

As a general rule, "the denial of a Rule 56 motion is an interlocutory order from which no appeal is available until the entry of judgment following the trial on the merits." Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d Sec. 2715, at 636 (1983); see, e.g., Simons v. United States, 497 F.2d 1046, 1050 (9th Cir.1974). The Supreme Court has noted, however, that qualified immunity "is an immunity from suit rather than a mere defense to liability...." Mitchell v. Forsyth, --- U.S. ----, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985) (emphasis in original). It has therefore The motion of the deputies was based on qualified immunity and the district court's denial comes within the Mitchell exception to the general rule of nonappealability. The issue, however, is narrow. As the Court stated in Mitchell, "the appealable issue is a purely legal one, whether the facts alleged (by the plaintiff, or, in some cases, the defendant) support a claim of violation of clearly established law." Id. at --------, 105 S.Ct. at 2816 n. 9. When the complaint alleges acts constituting a plain violation of law which has a settled substantive content, the defendant is entitled to summary judgment if he makes a showing by affidavit or otherwise that he did not commit those acts and "discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts." Id. at 2816. We thus hold that the denial of the deputies' motion for summary judgment is appealable for purposes of testing whether the defendant has demonstrated entitlement to summary judgment on grounds of qualified immunity.

                held that "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. Sec. 1291 notwithstanding the absence of a final judgment."    Id. at --------, 105 S.Ct. at 2817
                

The denial of the County's motion for summary judgment is not appealable, however. This motion was based primarily on the County's assertion that there was no policy or practice of unreasonable searches and seizures. It was not based on immunity and therefore does not fall within the Mitchell exception. The issues on appeal are thus limited to those raised by the deputies' motion on qualified immunity grounds.

DISCUSSION

Qualified immunity is a defense to lawsuits against governmental officials arising out of the performance of their duties. Its purpose is to permit such officials conscientiously to undertake their responsibilities without fear that they will be held liable in damages for actions that appear reasonable at the time, but are later held to violate statutory or constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967). According to the test for qualified immunity established by the Supreme Court, the deputies in this case are immune from liability (and trial) if "their conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.

Plaintiffs contend that when Kraus and Montgomery left the house and were surrounded by officers with drawn weapons and floodlights, the pair was arrested, and, further, that this seizure was not supported by probable cause. The deputies assert that there was no seizure in violation of established law and that in asking Kraus to come outside they reasonably believed that they performed an investigative stop for which probable cause is not required. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In Terry v. Ohio, however, investigative stops were justified as "necessarily swift action predicated upon on-the-spot observations of the officer on the beat -- which historically had not been, and as a practical manner could not be, subjected to the warrrant procedures." Thus, a suspect may be stopped for a "limited inquiry and weapons frisk." United States v. Beck, 598 F.2d 497 (9th Cir. 1979).

Investigative stops based upon suspicion short of probable cause are therefore constitutionally permissible only where the means utilized are the least intrusive reasonably available. "[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive...