Morgan v. Fairfield County, 090618 FED6, 17-4027

Docket Nº:17-4027
Party Name:Neil A. Morgan II; Anita L. Graf, Plaintiffs-Appellants, v. Fairfield County, Ohio, et al., Defendants-Appellees.
Attorney:Edward R. Forman, MARSHALL AND FORMAN LLC, Columbus, Ohio, for Appellants. Paul M. Bernhart, FISHEL HASS KIM ALBRECHT DOWNEY LLP, New Albany, Ohio, for Appellees. Edward R. Forman, John S. Marshall, MARSHALL AND FORMAN LLC, Columbus, Ohio, for Appellants. Paul M. Bernhart, Daniel T. Downey, FISHE...
Judge Panel:Before: DAUGHTREY, STRANCH, and THAPAR, Circuit Judges. JANE B. STRANCH, Circuit Judge, concurring. THAPAR, Circuit Judge, concurring in part and dissenting in part.
Case Date:September 06, 2018
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Neil A. Morgan II; Anita L. Graf, Plaintiffs-Appellants,


Fairfield County, Ohio, et al., Defendants-Appellees.

No. 17-4027

United States Court of Appeals, Sixth Circuit

September 6, 2018

Argued: May 2, 2018

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:15-cv-01505-Edmund A. Sargus Jr., District Judge.


Edward R. Forman, MARSHALL AND FORMAN LLC, Columbus, Ohio, for Appellants.

Paul M. Bernhart, FISHEL HASS KIM ALBRECHT DOWNEY LLP, New Albany, Ohio, for Appellees.


Edward R. Forman, John S. Marshall, MARSHALL AND FORMAN LLC, Columbus, Ohio, for Appellants.

Paul M. Bernhart, Daniel T. Downey, FISHEL HASS KIM ALBRECHT DOWNEY LLP, New Albany, Ohio, for Appellees.

Before: DAUGHTREY, STRANCH, and THAPAR, Circuit Judges.



Neil A. Morgan II and Anita L. Graf sued Fairfield County, Ohio, three of its officials, and five members of its sheriff's department under 42 U.S.C. § 1983, claiming Fourth Amendment violations. Specifically, Morgan and Graf alleged that individual officers of the county's SCRAP unit-Street Crime Reduction and Apprehension Program-violated their Fourth Amendment rights when they surrounded Morgan's and Graf's house, without a warrant or exigent circumstances, in order to perform a 'knock and talk.'1 They also claimed that the county violated their Fourth Amendment rights by making such illegal entries of property a policy or practice. The district court granted the defendants' motion for summary judgment in full. The district court was correct to conclude that the law was not clearly established, so that the claims against the individual officers failed on qualified immunity grounds. The district court was wrong, however, to conclude that the county was not liable for injuries caused by a policy that directed officers to make warrantless entries onto constitutionally protected property with no regard for-or even recognition of- constitutional limits. For these reasons, we affirm in part and reverse in part.


Morgan and Graf owned a home together on about a one-acre lot. The front of the house faced the road, and a sidewalk ran from the road to their front door. In the front window and on a vehicle parked on the property were no-trespassing signs. There were neighboring homes- each approximately 300 feet away. At the time of the events of this case, one of the neighboring houses was occupied; the other was empty. There were only limited sightlines between the houses and no residences across the street or behind Morgan's and Graf's house.

In the back of the house there was a second-story balcony that was not visible from the front of the residence. There were no stairs to the balcony, so that the only way to access it was through the house. On one side of the balcony was a privacy fence, blocking the view to the one neighbor's house that was occupied. On the other side, large trees blocked the view to the unoccupied neighboring house.

The county's SCRAP unit received two anonymous tips that Morgan and Graf were growing marijuana and cooking methamphetamine at their house. The SCRAP unit was familiar with Morgan and Graf; they had conducted a 'knock and talk' a year earlier and let Morgan and Graf off with a warning. The two new tips were not sufficient to establish probable cause for a warrant, however, and so the SCRAP unit decided to do another 'knock and talk.'

Five members of the SCRAP unit went to the house and, following their standard practice, surrounded the house before knocking on the door. One officer was stationed at each corner of the house, and one approached the front door. The officers around the perimeter were standing approximately five-to-seven feet from the house itself. The officers forming the perimeter could see through a window into the house on at least one side of the building.

With the officers in position, the officer at the front door-Deputy Lyle Campbell- knocked and spoke briefly with Graf. Graf shut the door, remaining inside.[2] While Campbell was speaking with Graf, one of the officers positioned in the back of the house noticed seven marijuana plants growing on the second-floor back balcony and notified the other members of the SCRAP unit. By the time Campbell learned of the plants, Graf already had closed the front door. Fearing destruction of evidence, Campbell then demanded that Graf return and open the door. Almost immediately after voicing that demand, he opened the door, entered the house, and brought Morgan and Graf outside to wait for a search warrant.

An Ohio court issued a search warrant based on the officers' observation of the marijuana plants. During the ensuing search, the police found weapons, drugs, and drug paraphernalia. Morgan and Graf were arrested and charged in state court. The trial court denied Morgan's and Graf's suppression motion, after which Morgan pleaded guilty and Graf was found guilty by a jury. On appeal, however, the denial of the suppression motion was overturned and the convictions vacated. The State of Ohio subsequently dropped the charges.

The proceedings below

After the dismissal of the charges, Morgan and Graf filed this 42 U.S.C. § 1983 action, alleging violations of their Fourth and Fourteenth Amendment rights to be free from unreasonable searches and seizures. They sued four members of the SCRAP unit in both their individual and official capacities, and they sued two Fairfield County commissioners and the Fairfield County sheriff in their official capacities. They also sued the county itself.

Morgan and Graf alleged that forming a perimeter around the house intruded on their curtilage, an area protected by the Fourth Amendment. What is more, the intrusion was not a one-time event-it was the county's policy to do so during every 'knock and talk.' On cross-motions for summary judgment, the district court dismissed all of the claims.

First, addressing the claims against the officers in their individual capacities, the district court concluded that the officers were entitled to qualified immunity. Specifically, the court held, qualified immunity was appropriate because even if intruding onto the curtilage violated the Fourth Amendment, it was not clearly established that such an action was a violation at the time of the 'knock and talk'-June 19, 2012. The district court relied on the unpublished decision in Turk v. Comerford, 488 Fed.Appx. 933 (6th Cir. 2012), which this court had issued a month after the 'knock and talk' incident at issue here. In Turk, police had surrounded a home for a 'knock and talk' because they believed that a dangerous fugitive was inside. Id. at 935. The Turk panel looked to the opinion in Hardesty v. Hamburg Township, 461 F.3d 646 (6th Cir. 2006), which recognized that curtilage gets Fourth Amendment protection but concluded that officers may intrude on curtilage to look for someone during a 'knock and talk' if they have indications that someone is inside and just not answering the door. Because it was unclear whether the logic of Hardesty applied to surrounding a house "with no warrant, exigent circumstances, or consent," the panel in Turk concluded that the police were entitled to qualified immunity. 488 Fed.Appx. at 947-48. Relying on Turk, the district court here concluded that if the law was not settled in July 2012, it was not settled in June 2012. Thus, the district court reasoned, the officers were entitled to qualified immunity.

Next, the district court addressed the official-capacity claims and the claim against the county-correctly analyzed as one claim against Fairfield County-and concluded that Morgan and Graf could not meet the standard for municipal liability required by Monell v. Department of Social Services, 436 U.S. 658 (1978). The court noted that Morgan and Graf could not show that the policy was facially unconstitutional because there could be instances in which the policy would be applied constitutionally. Nor, said the district court, could they satisfy the burden of showing that the county was deliberately indifferent to unconstitutional application of its policy. The district court thus granted summary judgment in favor of all of the defendants on all claims.


Standard of review

This court reviews a grant of summary judgment de novo.

Daughenbaugh v. City of Tiffin, 150 F.3d 594, 597 (6th Cir. 1998). "In the qualified immunity context, 'this usually means adopting . . . the plaintiff's version of the facts,' unless the plaintiff's version is 'blatantly contradicted by the record, so that no reasonable jury could believe it.'" Stoudemire v. Mich. Dep't of Corr., 705 F.3d 560, 565 (6th Cir. 2013) (alteration in original) (quoting Scott v. Harris, 550 U.S. 372, 378, 380 (2007)). Summary judgment is appropriate only if there is no genuine dispute of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is material if its resolution will affect the outcome of the lawsuit. Id. at 248.3

Qualified immunity

Government officials sued in their individual capacities for constitutional violations are free from liability for civil damages unless (1) they violate a constitutional right that (2) was clearly established at the time that it was violated.

See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts can address these two elements in any order. Pearson v. Callahan, 555 U.S. 223, 236-37 (2009). And although this decision turns on the second element-whether the law was clearly established-we have the ability, if not the responsibility, to clarify the state of the law in this circuit so that government agents can understand the limits of their power and that citizens will be...

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